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a cache of usenet and other text files pertaining
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a cache of usenet and other text files pertaining
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Subject: McMurtry vs. S.O.T.O. Trial
[from personal email: heidrick@well.com to tyagi@houseofkaos.abyss.com]
This is an electronic copy of the McMurtry vs. S.O.T.O. Trial
Transcript, made for purposes of analysis and study.
Entered by Bill Heidrick, Grand Treasurer General O.T.O.
Notes: Original transcript pages in square brackets: []
Notes and corrections in curly brackets: {}
with source indicated:
Heidrick corrections & notes: { -weh}
Plaintiff formal corrections: { -pla}
Defendant formal corrections: { -def}
abbreviations used to signify alternative:
"should be" = sb.
"may be" = mb.
abbreviations used to signify transcript confidence:
"doubtful or unknown" = ?
"highly questionable" = ?!
"Thus in transcript" = SIC
"Let it Stand (no change to original) =STET
Regarding evidence received formally, there appears to be a lapse in the manner of cross-reference used by the court reporter. Some evidence appears on the face of The Court's statements to have been accepted in batches, and these cross-references are not generally tabulated by the reporter. In addition, some single action receivings in evidence may have been similarly over-looked. Evidence is therefore to be found as received through an examination of the entire text of the several volumes of this Trial Transcript, and through a close reading of the decisions of The Court in the progress from page to page of this Transcript.
This is one of four files of the transcript.
This file covers pages 1 through 249
[page 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE CHARLES A. LEGGE, JUDGE
Grady McMurtry, William E. Heidrick, Phyllis Seckler, Helen Parsons Smith, William Breeze, Francis I. Regardie, James Wasserman, and Kenneth Anger, individuals, Ordo Templi Orientis, a corporation, and Thelema Publications, a business entity,
Plaintiffs,
vs.
Society Ordo Templi Orientis, a corporation, Thelema Publishing Company, a corporation, Marcelo Ramos Motta, an individual, and Does I through X, inclusive,
Defendants.
CIVIL NO. C-83-5434
VOLUME I
PAGES 1 - 143
REPORTER'S TRANSCRIPT OF PROCEEDINGS OF COURT TRIAL
Monday, May 13, 1985
450 Golden Gate Avenue
San Francisco, CAlifornia 94102
REPORTED BY:
Lavon Granger
[page 2]
APPEARANCES:
FOR THE PLAINTIFFS:
Stuart I. MacKenzie, Esquire
80 Swan Way, Suite 301
Oakland, California 94621
FOR THE DEFENDANTS:
Law Offices of Mittel & Hefferan
By: Robert Edmon Mittel, Esquire
5 Milk St.
P.O.Box 427
Portland, Maine 04112
[page 3]
INDEX
VOLUME I
PAGE
OPENING STATEMENT ON BEHALF OF THE PLAINTIFFS: 14
Examinations:
Witness: Direct Cross Voir_Dire
Grady Louis McMurtry 20 116 75
Resumed 76
Plaintiff's Exhibits: For_Ident. In_Evidence
28 Letter dated 8-22-44. 34 34
42 Letter to Karl Germer from 76
Grady McMurtry.
[page 4]
Monday, May 13, 1985 9: o'clock a.m.
PROCEEDINGS
FIRST DAY
THE CLERK: Civil Action No. 83-5434, McMurtry versus Society Ordo Templi Orientis.
Counsel, state your appearances.
MR. MacKENZIE: Stuart MacKenzie for the plaintiffs.
MR. MITTEL: Robert Mittel for the defendants.
THE COURT: Ladies and gentlemen, again I apologize for the delay in getting started this morning.
The court reporter who was assigned to us was not here this morning and it took us awhile to find a substitute who kindly agreed to fill in for us this morning.
I will say I have read all of the pretrial submissions of both the plaintiffs and defendants, and I am ready to proceed with the trial.
Mr. MacKenzie, I understand you have a motion before we begin testimony.
MR. MacKENZIE: Yes, Your Honor, I do. And that motion is based on some argument [page 5] raised in the trial brief, principally that I believe the defendants are estopped from mitigating {SIC sb. "litigating" -def} the issue of whether they have any ownership rights in the archive material as well as from -- purporting that the defendant is the Outer Head or Supreme Leader of the Ordo Templi Orientis.
That was specifically concluded in that case, and as I understand the situation there can be res judicata in such effect.
THE COURT: Do you believe those rulings act to establish your, that is, the plaintiffs' causes of action or simply to bar the defendants' counterclaim?
MR. MacKENZIE: I believe they bar the defendants' counterclaim, Your Honor.
THE COURT: So it's really a collateral estoppel effect on the counterclaims rather than a res judicata effect on your case in chief?
MR MacKENZIE: That is right, Your Honor.
We still have to establish that we are entitled to it, but I don't believe the defendants should be allowed to contest that he is entitled to it. This is the first motion, Your Honor.
The second one is that the various causes of actions, the IV, V and VI are barred by the Statute of Limitations. This was a defense raised in the Answer to [page 6] the Defendants' Crows-Counterclaim for failure to state a cause of action.
And I have cited the reasons being invasion of privacy of a one-year action and breach of duties is two years and conversation {SIC sb. "conversion" -def} is three years, Your Honor.
I think it will become apparent during the course of the trial that those periods have elapsed.
I might just say principally one of the causes of action for breach of duties concerns the plaintiff, Jim Wasserman, who the defendant contends was sent out here with a power of attorney in 1976 and breached his duties.
I think that one is clearly barred even if the defendant wants to argue there were other acts that have happened since they breached their duties. But that one I would like to eliminate at this time. There is no way that can be heard, in my opinion.
THE COURT: Okay. Mr. Mittel, do you wish to reply?
MR. MITTEL: Yes, I do, Your Honor. On the question of the Statute of Limitations, it was not pled in the reply to the Counterclaim.
It's waived under hundreds and hundreds of cases and it's not part of a defense and failure to [page 7] state a claim. It's an affirmative offense that must be pleaded. It wasn't, and it is gone.
On the collateral estoppel question I have several things to say.
The first and most important is that these plaintiffs can't use collateral estoppel in this case because they are what the Justice Wrenquist {SIC "Rehnquist" -def} referred to as wait-and-see plaintiffs.
They had not only an opportunity to intervene in May and litigate all of the questions that relate to the intellectural {SIC "intellectual" -def} property and personal property of the Ordo Templi Orientis, but an invitation from me to do so. They chose not to do so.
And a portion of the evidence available on the question of who is the Outer Head of this entity was presented to the District Court in May.
Prior to the trial I had come to California and -- the rial in Maine, that is -- and taken the depositions of plaintiff McMurtry, Mrs. Seckler and Mrs. Smith. I had also gone to New York and taken the deposition of Mr. Wasserman.
Each of those deponents was asked to produce documents relevant to claims of ownership and also relating to any of the 20 or so key individual actors in the group over the last 40 years now. [page 8]
In December of 1983 at the depositions or prior to the depositions, the witnesses produced several hundreds pieces of documentation. That documentation was all available for trial in Maine in 1984.
Mr. McMurtry came to that trial and testified, brought with him some new documents. And then after that trial was over these plaintiffs, in response to discovery in this case, identical in the terms of the documents that we were requesting, produced well over 200 more documents, 172, I believe, in June or July, and at least another hundred since then, many of which also bear on the question of who is the Outer Head of the Ordo Templi Orientis.
THE COURT: These documentations were in connection with this case or with the Maine case?
MR MITTEL: The December '83 productions were dual-captioned. The deposition notices were captioned both Maine and California, if you will. One case entitled -- I can't remember the name of the lead plaintiff, but I think it's Motta versus Samuel Weiser, Inc.
The other one was McMurtry versus Society Ordo Templi Orientis. That is this case.
In any event, the last discovery and Interrogatories, three sets, production requests, three [page 9] sets, which came during the spring which generated more documents under the same categories were only captioned in this cause.
So what I am suggesting to you is: Had they produced all of the documents back in December of '83, then maybe -- I am not going to concede, but I will say "maybe" we would be precluded. But they didn't.
Many of those documents are going to be introduced during the course of this trial and you will be the first Judge to see them.
Judge Carter did not see them because we did not have them. That is one point.
Second: I am not sure that the Maine Judgment is a final judgment.
THE COURT: Wait a second.
MR. MITTEL: All right.
THE COURT: Are you contending that the production of documents of impacts your disposition of the plaintiffs' motion because {SIC sb. "because" -def} of a voluntary participation, or is it because the issues are now different than they were in May?
MR. MITTEL: Well, I wanted to talk a bit about how the issues are a little different. But what I am addressing initially is the fairness question.
In other words, before you can estop someone, [page 10] they have got to have had, if you will, a fair opportunity to fully litigate.
And what I am suggesting to you is that this plaintiff -- this defendant, these defendants did not have a full and fair opportunity within the reach of Londerton and Marklan Hosear (phonetic) {SIC sb. "Blonder-Tongue and Parklane Hosiery" -def}, because of the absence of those documents and also because, as I have said, these plaintiffs here could, and I am submitting to you, if they want to rely on the collateral estoppel, should have been named, however, in Maine.
THE COURT: Let me say this: I am going to cut you off from argument on the points for present purposes.
That is, the plaintiffs' motion pertains to the defendants' case in chief. So I will take that motion under submission.
But I will ask the plaintiffs now to be prepared to move ahead with their case in chief and I will give you a ruling on this matter before defendants are called upon to put on their case in chief.
It may be before that, but I want to take a closer look at this. And rather than to keep all of these parties and witnesses waiting while these matters of law are gone into, I will simply take them under submission for the present purpose and will rule on them [page 11] later.
MR. MITTEL: May I say one five-second point?
THE COURT: Sure.
MR. MITTEL: That is not apparent from the record unless you have the document which is in Maine.
There is a motion for attorney's fees in the Maine case still pending, even though the judgment on the merits is on appeal. I think -- I haven't looked recently at the law on this question, but I believe that that means that the Maine judgment is not a final judgment, notwithstanding the appealability question, which should render it not effective for collateral estoppel purposes. That I am not certain of. I will try to find that out for you before tomorrow.
THE COURT: All right. The plaintiffs' motion will be taken under submission or is taken under submission.
And I will give you a ruling at least before the defendant is prepared to present his case in chief.
MR. MacKENZIE: Your Honor, may I just respond to for one minute on that?
THE COURT: Yes, sure.
MR. MacKENZIE: There are a few things that haven't been said, and one of them is plaintiff -- I [page 12] should say defendants in this case, who were plaintiffs in Maine, they initiated that case.
THE COURT: I know.
MR. MacKENZIE: They sought production of documents. We gave them all we had, actually.
What happened at the end of 1984 is that a major cache of documents were found. The defendants have taken the de position of the person who found them. He is not a member of OTO.
We produced a great deal of those and those are included in this case. And defendants can't say they didn't have those in Maine.
They didn't exist at that time, to our knowledge. We couldn't produce them.
The main thing is, the defendants were the plaintiffs in that case. For them to say: "You are suing us in California, come on out to Maine and join us, and let's do that," I think that's rather preposterous.
All the plaintiffs -- not all of them -- the majority of the plaintiffs in the organization are based out here.
Secondly, I think Rule 12(a) makes clear that you can raise a failure to state a cause of action at any time, including trial, and I have cited a case in [page 13] support of that context.
So that my motion for failure to state a cause of action, which is what the Statute of Limitations is all about, can be made at this time.
Finally I would say one other point, and that is that I think that the decision in Maine is quite final in that the case concluded last summer and the judgment came out last December.
And I have a case in support that says when a case is on appeal you still have a final judgment. So it's my belief we have a final judgment and they are estopped and I am ready to proceed, though.
THE COURT: Plaintiffs' motion will be taken under submission.
Mr. MacKenzie, do you wish to make an opening statement?
MR. MacKENZIE: Yes, I do.
If I might say it, I have one other cite that I used in researching this issue on collateral estoppel, if I may make that available to you or cite it.
THE COURT: If you have an extra copy it will be helpful.
MR. MacKENZIE: I will run off a copy. It's in the back of the Supreme Court Reporter and it's about a 20-page article on that.
[page 14]
THE COURT: Just give me the citation.
MR. MacKENZIE: 58 Lawyers Edition Section {SIC sb. "Second" -def} 938.
THE COURT: Is that a case or an article?
MR. MacKENZIE: It's an article. And the principal case is also in that book, which I believe is the Parkland {SIC sb. "Parklane" -def} case.
THE COURT: Parkland {SIC sb. "Parklane" -def}?
MR. MacKENZIE: Yes.
THE COURT: Okay.
MR. MacKENZIE: Thank you.
THE COURT: You have a plaintiffs' opening statement?
MR. MacKENZIE: Yes, I do, Your Honor.
OPENING STATEMENT ON BEHALF OF THE PLAINTIFFS.
MR. MacKENZIE: I would like to say, Your Honor, at the very outset, and the feeling that I had when I began this case some three years ago, was that it seemed to be principally between two groups and their respective leaders who both claim to be successor to an organization that had dwindled somewhat, atrophied, in fact, under the leadership of its last acknowledged head leader, Karl Germer.
And they both claimed for various reasons [page 15] that one or the other was the successor. That is how it started. And I think that is what becomes apparent if you just read the pleadings.
But after spending as much time on it, as everyone has, I think there is something else at issue here.
What I think the evidence will show is that the plaintiff, Grady McMurtry, was initiated some 44 years ago by the most notable leader of the OTO, Mr. Crowley.
He became a favorite of Crowley and bases his claim on several documents that he has received from Crowley, Caliphate letters, which speak of him in a very high regard and the possibility of his accession or succession to the leadership.
Secondly, he got several authorization letters that more or less put him in charge of the entire country.
A third valuable gift that he received from Crowley was a 25-percent interest in the copyrights that Crowley owned. Crowley was a prolific author and it's principally because of Crowley that there is a lot of value in the Archives.
The Archives consist primarily of published and unpublished Crowley material, and there is a lecture [page 16] market out there that would pay quite a bit to get some of that material. So there is something that has value in this.
The plaintiffs themselves are the largest single depository of Crowley material, excluding the University of London Warburg Institute, and that, of course, was awarded them pursuant to the Calaveras decree.
The defendant, Motta, in turn claims to have received a patent, as he calls it, from Karl Germer, the last head that died in 1962.
Mr. Motta will testify he only met Crowley {SIC s.b. Germer -weh} two or three times. He is unable to produce this patent. He is unable to produce any proof that he received such a patent.
The only thing he relies on or seeking to rely on to establish that he is the successor is what is called a "follower letter," a cryptic letter written by Mr. Germer's demented wife, who was not a member of the OTO, saying that: "You are the follower." No one knows what that means.
He also relies on a second letter from Sascha Germer that says, in effect, "Well, Karl had sent you certain kinds of documents on an April 20 date," but Mr,. Motta testified he never received that either. [page 17]
The plaintiff will introduce that April 20th data and I think it will be very apparent that that leter {SIC sb. "letter" -def} did not say: "I am sending you this." Rather it was a discussion of "If you do certain things you just might get it." Those conditions were not met. Mr. Germer died six months later.
Following Karl Germer's death, as I said, the Order became rather atrophied and it was not until the end of the 1960a that the plaintiff, McMurtry, along with plaintiff Phyllis Seckler began reinitiating people and trying to build something up.
And the evidence will show in 1971 they registered in name of the insignia with the California Secretary of State. They incorporated in 1969 {SIC sb 1979 -weh}.
And in the Calaveras Court decree in which -- they were awarded possession on behalf of the Ordo Templi Orientis as its representatives.
Finally, we will attempt to give a picture of what the plaintiff Ordo Templi Orientis is all about. And it certainly has about 700 members in countries worldwide.
During the entire time and/or the majority of this time Mr. Motta was in Brazil. He did spend some time in the U.S. and has been here for the last few years again. [page 18]
So that I think the issue of credibility is somewhat relevant here because all of his information is secondhand. He was some 7,000 miles away.
When I started, I said that is how the case appeared to me. When I first started it, two various groups, both disputing each other's rights to claim the successorship to the Order.
But it has become very apparent to me, and I think it will in this trial, that there is a deeper issue here and that is something that is not so clear and that is what is liable to be made clear in some of the ongoing activities of the defendants.
Testimony will be presented, not just by the plaintiffs, but by former members of the defendant's organizations, which he now admits have dwindled down to five and we believe is even less membership of the extraordinary comical perturbative {SIC sb "vituperative" anon} -- and I use these words with thought; I do not bandy these words about.
I don't want to impugn anyone's reputation if they don't deserve it -- but having seen the correspondence that will be shown here and having seen the bags {SIC ?} that mr. Motta continues to bring, not only the libel in the Complaint, but what has been produced since that time, including one's own notice of this lawsuit, going out and registering more of the Order's [page19] copyrights, although knowing they were fully in dispute, it's absolutely clear to me that Mr. Motta is one of the most arrogant fanatical people I have ever associated with. And former members will testify to that.
And letters of Mr. Motta will establish that beyond a doubt. And the reason I mention that, Your Honor, is that we are asking for punitive damages in this case.
And I think they are well warranted because Mr. Motta has not just once or twice misstated something; he has been ongoing about this.
So in conclusion, Your Honor, I think that we are looking at two issues here and that is basically which of these groups is the successor and entitled to the library, but underlying this whole thing, Your Honor, is: Well, what are these people about?
And you will get a chance to see these plaintiffs and Mr. Motta and be exposed to comments about them.
And I think it will be answered quite dramatically just what kind of person we are dealing with here, the defendant here. And the plaintiffs' request for damages is well substantiated by the facts.
Thank you.
THE COURT: Thank you. [page 20]
Does the defendant wish to make an opening statement at this time?
MR. MITTEL: May I reserve my opening statement until we present our case in chief?
THE COURT: Yes, you may, sir.
MR. MITTEL: Thank you, Your Honor.
THE COURT: Mr. Mackenzie, with you call your first witness, please?
MR. MacKENZIE: Mr. McMurtry.
GRADY LOUIS McMURTRY,
called as a witness by the plaintiffs and in his own behalf, having been duly sworn, was examined and testified as hereinafter set forth.
THE CLERK: State your name for the record; spell your last name, please.
THE WITNESS: Grady Louis McMurtry, M-c-M-u-r-t-r-y.
DIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Mr. McMurtry, what is your age, please?
A. Sixty-six.
Q. How are you feeling?
A. Not too well. I probably should be in the hospital. I have congestive heart failure, but I am up to date. [page 21]
Q. If you have any kind of a problem, please let us know and --
THE COURT: Yes. Mr. McMurtry, we have enough flexibility in conducting these court proceedings in order to accommodate any physical problems that any of our witnesses or parties may have.
So if you feel in distress in any way, please let us know.
THE WITNESS: Thank you, sir. I may get tired after awhile.
THE COURT: Okay.
BY MR. MacKENZIE:
Q. Would you briefly state your educational background?
A. Yes. I have a B.A. in Philosophy, University of California, 1965{SIC}; a Master's Degree in Political Theory, U.C. Berkeley, 1950, after I came home from the Korean War.
Q. Thank you.
You are familiar with the OTO?
A. Yes, I am.
Q. Are you a member?
A. I am.
Q. Since what time have you been a member?
A. Since april of 1941. [page 22]
Q. Have you remained a member?
A. Always.
Q. Were you initiated into the Order?
A. Yes, I was initiated at the Agape Lodge in Los Angeles.
Q. Would you explain what the Agape Lodge was?
A. Agape Lodge was a group of people organized as a Lodge Ordo Templi Orientis in Los Angeles under the direct supervision naturally of karl Germer in New York and treasurer again of the OTO and Aleister Crowley in England who is {SIC sb. "was" -weh} the head of the Order.
Q. To what degree were you initiated?
A. In April I was initiated in at the Minerval level and the First Degree of the Ordo Templi Orientis.
Q. Would you explain, if you can, what constitutes an OTO entrance initiation into membership?
A. Yes. There is an active personal exchange of views of others and obligations and actions are taken -- physically, you must be present physically. We do not give initiation by mail.
Q. Are there any ceremonies involved?
A. Yes, ceremonies. Actual exchange of people coming in an being traditional {SIC sb. "traditionally" -pla} hoodwinked and thinks like that, given -- put through certain motions and asked certain questions and then given certain degrees. [page 23]
Q. By this do you mean an interchange?
A. An interchange of activity between the -- the officers of the Order and the people to be initiated.
Q. Would you just briefly explain how many degrees or levels of membership there are?
A. Yes. Minerval Degree, a secret of Wisdom, and there are ten degrees, 1 through 10.
There is a -- Ninth Degree is administrative. Ten Degrees are national heads.
Eleventh Degrees exist outside the Order, but can be recognized by the Order. It has no administrative function for the Order, however.
Q. All right.
Thank you.
THE COURT: Mr. MacKenzie, for the benefit of the court reporter at our recess write out for the court reporter some of these popular phrases so she gets them correctly, please.
MR. MackENZIE: I will be happy to, yes.
BY MR. MacKENZIE:
Q. Can you explain where OTO gets these rules regarding initiation and so forth?
A. Our primary document for our status is in the Intermission towards the Constitutionale of the Order {SIC sb. "Intimation with Reference to the Constitution of the Order" -weh or sb. "Intimation toward the Constitution" -pla or sb. "Intimation" and "Constitution" -def} that is published in the "Blue Equinox". [page 24]
It has been handed down for 40 years for a -- for rituals for the various degrees.
Q. So we are going to hear a lot of the words "Blue Equinox" in the future. Is that what you are referring to?
A. Yes.
Q. Would you explain that?
Is it that you look for the "Blue Equinox" for the rules?
A. We look to the "Blue Equinox" for our Constitution, "Blue Equinox" Volumes publishes periodicals and through Thelema in 1919 Aleister Crowley published a volume of the "Equinox". It had a blue cover. {SIC text somewhat garbled by reporter -weh}
It had in it much of the governing material for the Order, including the Intermission for the Constitution {SIC sb. "Intimation with Reference to the Constitution" -weh or sb. "Intimation" -def}.
So that is the original thing we had to look for to -- that we looked to.
Q. Would you briefly give a little historical background as to the OTO and when it began?
A. The OTO, Ordo Templi Orientis, in the modern phrase began around the turn of the century. Mr. Kellner went to India, came back with certain information.
It was after that Mr. Reuss came in, and Mr. Reuss initiated Aleister Crowley into the Order. [page 25]
Aleister Crowley came in the Order through election. And since he was a pro {SIC sb. "OHO" -def or sb. STET -pla} that became the vehicle for the Thelemic Lodge. {SIC text badly garbled by reporter --weh}
Q. How long was Aleister Crowley the Outer Head?
A. Let me see. About 40 years, approximately.
Q. About 20 years?
A. Well, let's see. Forty more likely, because I knew him in the '40s. He died in '47, and he had gotten -- he came into the Order apparently early.
Q. I am speaking of him being an Outer Head.
A. Oh. From the time he was elected as Outer Head.
Q. Yes. When approximately was that?
A. I do not have that date in my head.
Q. All right. Would you explain if there are -- well, let me ask you first:
Are there any provisions made for electing such a leader or Outer Head?
A. Yes. The 1917 Constitution, of which the 1919 "Blue Equinox" Constitution's but an abstract, gives provision for electing a head.
And it's intimated in the Constitution that since the Outer Head of the order can be deposed, therefore he can be elected.
Q. Thank you.
Does membership in any of the various degrees [page 26] automatically confer a leadership position on someone?
A. Yes. Tenth Degree is national head.
Ninth Degree is administrative, and those members are meant to go into the field and look after the needs for information, so forth, of the OTO.
The Third Degree -- we have a Minerval First {SIC sb. "Minerval, First," -pla}, Second and Third.
When the candidate has reached the Third Degree and initiated, we then have the possibility of that person being given a charter by myself to initiate other people up to the Third Degree.
Q. I see. Would you describe the leadership of the position of the OTO at the time of your initiation in the 1940s?
A. Yes. Your leadership was very positive. That is to say the Head of the Order was Aleister Crowley in England.
The Grand Treasurer, again second position, was Karl Germer in New York.
Wilfred Smith was head of the Agape Lodge.
Q. All right,. fine.
Thank you.
How was Aleister Crowley made the leader?
A. At that particular time he was elected by --
MR. MITTEL: Objection; foundation. [page 27]
BY MR. MacKENZIE:
Q. Are you familiar with the history of the Order?
A. Yes, I am.
Q. Have you read it extensively?
A. As best I could.
MR. MacKENZIE: Your Honor, I think that Mr. McMurtry has an historical basis.
THE COURT: Yes. This is historical background. As I understand the pre-trial readings that I have done in this matter, it isn't seriously contested.
However, ---
MR. MITTEL: What's contested is how Mr. Crowley may have become head of the Order and what my objection goes to is that I don't believe there is any specific evidence of election as opposed to accession by appointment, if you will, form the predecessor.
THE COURT: I will permit the witness to testify as to what knowledge he has on the subject matter.
BY MR. MacKENZIE:
Q. Go ahead.
A. My information as a long-time member of the Order that at that particular time Dr. Reuss designated or proposed Crowley be head of the Order. He was elected [page 28] by the German section, Mr. Tranker, T-r-a-n-k-e-r, and American-Canadian-U.S. section by Frater Achad.
Q. What if no such appointment or election takes place?
A. In that case, upon the death of a head of the Order, such as Karl Germer died without leaving a -- proposing a successor, then the members of the Order come together.
And usually the process is the senior member of the Order is considered to be the superior father, superior member, the mother superior, but we have never had such.
Q. What's a Frater Superior?
A. It's equivalent to the OHO and is the senior member of the Order.
Q. What's the difference, then, between the OHO and Frater Superior?
A. The difference is the Frater Superior functions to keep the Order together during the interim period between the time of the emergency of not having an Outer Head of the Order and the time they can get one -- get themselves together in an organizational pattern so that one can be elected.
Q. Would it be fair to characterize this as a jure effect?
[page 29]
A. Such a person is -- Frater Superior is a de facto head, yes.
Q. Who was the last Outer Head of the Order?
A. Oh, the last? Aleister Crowley. The de facto head of the Order was Karl Germer.
Q. What's your basis for calling him a de facto and not de jure?
A. Because the tradition of election preserves even that. Aleister Crowley proposed Karl Germer should be elected as the Outer Head of the Order; it was circulated among the Ninth Degrees, of which I was one.
He was to call that election within a year of the day of his death. He was Superior of the Order. We. recognized him as that, but he was never properly elected as the higher rank of the Order.
Q. I believe you stated that he did not appoint a successor.
A. I have no information that Mr. Germer appointed a successor or designated one or even proposed one.
Q. What's then the provision of the Order?
A. The provision of the Order in terms of leadership is that I am Frater Superior and Caliph and this is due to Aleister Crowley on the battlefields of France and Belgium during World War II.
And the documents of authorization which is [page 30] sometimes called patents, called warrants, was sent to me in 1946 when I returned and was living in this country.
Q. I would like you specifically to answer the question as to what the provision is with regard to the Order and its properties.
A. I am sorry. Yes.
The provisions that we have on the Templi is incorporated in the State of California. It has a Board of Directors of which I am Chairman.
It has a Grand Treasurer General, Grand Treasurer General {SIC probably one of these Treasurers should be a Secretary -weh} and four members of the Board.
Q. Mr. McMurtry, I am not making myself clear.
I would like to know what is the situation of the property of the Order in this period .
A. Yes, of course.
In the interim period in 1968, when I became aware of the loss of the library, I cam back to California to find out why.
And so from that point forward my efforts have been and the Order's have been to conserve the property and integrity of the Order as best we can until we can come up where a new OHO can be elected.
Q. Who is currently the highest ranking member in the Order? [page 31]
A. I am.
Q. What degree do you hold?
A. Ninth Degree of -- Ninth Degree by paper -- technically that is de facto leadership of the U.S.
Q. You indicated that you were initiated in 1941 to the Minerval in the First Degree?
A. That is correct.
Q. Did you receive any other degrees?
A. Yes. In England and London in 1943 in December I was a Crowley graduate in the Ninth Degree.
Q. I would like to show you Plaintiffs' Exhibit No. 28 and ask you if you recognize it?
A. Yes. This is a xerox of a letter received by me from Aleister Crowley dated April 11, 1945.
It states that Achad is {SIC sb. "I am" -weh -pla and please check "Achad" -def} a fully paid-up member of the Ninth Degree of OTO and owner of 25 percent of the copyrights of Aleister Crowley's "Magick"' M-a-g-i-c-k, "Without Tears."
Q. Is it your contention that is accurate?
A. It says here "with first priority on royalties." First priority on royalties.
Q. Are you contending that you received a copyright interest?
A. Yes.
Q. Who initiated you into the Order? [page 32]
A. Wilfred Smith was the Master of Agape Lodge at the time of the initiation into OTO Templi in 1941.
Q. How did you meet Aleister Crowley?
A. Off a troopship on my birthday, October 18, 1943. Within two weeks I was able to meet Aleister Crowley and Jerry Yorke on Sherman Street {SIC sb. "Gerald Yorke on Jermyn Street" -weh or "Gerald" -pla} in London. That was in 1943.
Q. Did you maintain contact with Aleister Crowley?
A. Yes, I did, while I was in England. Before the invasion I met Aleister Crowley at the London address several times, maybe six.
When he moved up to the Belgium at 1010 Dunn {SIC sb. "Bell Inn at Aston-Clinton -weh}, I was in there three, four times.
And then when the war was over in May, June of 1945, I took two weeks of annual leave, flew to England to be with Crowley on Hastings Road, which I did.
Q. Did you receive the NInth Degree from Crowley before you received this Plaintiffs' Exhibit 28?
A. Oh, yes. I received a Ninth Degree in 1943.
Q. Did you receive a document at the time of being initiated into the Ninth Degree?
A. Yes. There is a document called "Mother and Emblems." {SIC sb. "Modes and Emblems..." -weh or "Modes and" -pla or "Modes" -def} And Mr. Crowley gave me such a document.
Q. When someone becomes initiated into the Ninth [page 33] Degree, does one receive a document at that time?
A. It would not be a Ninth Degree with that particular document.
MR. MITTEL: Objection; move to strike the answer.
If he is going to talk about a document, Your Honor, without that particular document, that is one of the categories of documents that we have asked them to produce and they haven't been produced.
And I don't think he should be allowed to talk about it under the Best Evidence Rule.
THE COURT: On that record your objection is overruled.
THE WITNESS: Very well.
BY MR. MacKENZIE:
Q. What's a patent or patent word in the Order's vocabulary?
A. To the best of my knowledge, we have never used that, and Aleister Crowley never used that, and I never found it through the "Equinox".
Q. I would like to show you Plaintiffs' Exhibit 30 and ask --
MR. MacKENZIE: Your Honor, I am sorry. I would at this time like to offer Plaintiffs' 28.
THE COURT: It may be admitted. [page 34]
MR. MacKENZIE: Thank you.
(A letter dated August 22,
1944 was marked Plaintiffs'
Exhibit 28 for identification
and received in evidence.)
BY MR. MacKENZIE:
Q. I ask you if you would, please, identify this document?
A. Yes. This is a letter which is addressed -- the letter is dated 22 August 1944. It's addressed to:
"Dear Louie: {SIC sb. "Louis" -def}
"Now, the question is to me and the answer is in the envelope. Grady McMurtry." {SIC sb. no indent or quotes -def}
Q. Is it your testimony that that letter came in that envelope?
A. Yes, it is.
Q. I would like to also show you Plaintiffs' Exhibit 29 and ask if you would identify that, please?
A. All right. This is a letter from Aleister Crowley to myself. It has initial -- a greeting, Karl.
It's addressed on the envelope to Lieutenant Grady L. McMurtry, 820449, U.S. Army, Belgium.
It's the last of the Caliphate letters, of which there are three. And he discusses the concept of the Caliphate.
THE COURT: You are going to have to slow [page 35] down. A lot of the terms you are using are unfamiliar with the court reporter. I have had some advanced reading on this. It's not as unfamiliar to me. But we have to get the record down. And she has to get it down correctly.
Thank you.
THE WITNESS: Now, this letter is addressed on the envelope to Lieutenant Grady L. McMurtry. I was in the Army in Belgium. It's dated November 21, 1944. In it it discusses --
BY MR. MacKENZIE:
Q. Who sent that to you?
A. Aleister Crowley.
Q. All right. Well, let's for a moment go on to Plaintiffs' No. 30, the August 22nd letter.
Drawing your attention to page 3, I would ask if you would read aloud the sections underlined.
A. Yes.
Q. -- at the bottom of that page.
A. "You are the only man from the USA of
the younger generation who has been
properly blooded and you know me
personally with a remarkable degree
of intimacy, considering the shortness
of our association. You are also [page 36]
quite the most serious and intelligent
of the younger lot. This singles you
out as a proper man to take charge
of affairs when the time is right."
Q. What does he mean by "properly blooded"?
MR. MITTEL: Objection; foundation
BY MR. MacKENZIE:
Q. Had Aleister Crowley --
THE COURT: The witness may testify as to what his understanding is. The witness is not competent to testify as to the stated condition of Mr. Crowley, --
THE WITNESS: My -- oh, I am sorry, Your Honor.
THE COURT: -- but the witness may testify as to what his understanding is.
THE WITNESS: Yes. My understanding of it was that Aleister Crowley was considering me seriously to ba a chief Caliphate following Karl Germer.
Ant it was important that Frater Caliphate should experience was as it was, in fact, in the 1940s and 1980s.
BY MR. MacKENZIE:
Q. Okay. Looking at Plaintiffs' Exhibit 29 on the first page of that document, to which is a photocopy of [page 37] an envelope, halfway down he says, "The Caliphate"?
A. Yes.
Q. Would you explain your understanding of what was meant by that term?
A. Yes. Caliph, C-a-l-i-p-h, is traditionally the successor to a prophet in the Orients, and since it is an Oriental Order or Templi and Otolloy {SIC sb. "Orient, and since it is an Oriental Order or Temple and Crowley" -weh or replace "Otolloy" with "Crowley" -pla -def} was a prophet, he felt his success {SIC sb. "successor" -weh} should be in terms of an office of Caliph following him.
Q. To your knowledge, had Aleister Crowley used this word before?
A. I do not believe that he ever used it in the "Blue Equinox". I do not believe he ever used it in conversation with Mr. Germer or anybody else.
To the best of my knowledge, I am the only person I have been able to find that he wrote to about the Caliph.
Q. If you would be so kind as to read the bottom of that page on to the next page. It's a little difficult to make out what's meant there.
A. Well, I've been reading Aleister Crowley's writing. Maybe I can make it. "Frater Saturnus"--
Q. Now, these originals --
A. --"is a" -- Sir?
Q. Yes. "Frater Saturnus," what does that mean?
A. The marksmen {SIC sb. "marks mean" -weh -pla -def} higher order. Those are the --- what do you call -- fire marks for the higher order, the three dots there.
Q. Go on.
A. "Frater Saturnus is the capitalist" {SIC s. "natural Caliph" -pla -def} -- right at that point he is saying "capitalist" {SIC s. "natural Caliph" -pla -def} -- "but there are many details concerning the actual policy or working which is {SIC sb. "which hit his" -weh -pla -def} blind spots.
"In any case, it can only be a stop gap because of his age. I have to look for his underlying successor." {SIC sb. ..." -- underlined -- "successor ... -pla} {SIC should indent quoted portions -def}
Q. You are saying Frater Saturnus is the reference to Karl Germer?
A. Yes.
Q. Would you read the bottom of that page that has been marked in yellow, please?
A. Yes.
"You are {SIC sb. "Your" -pla -def} actual life or blooding" {SIC sb. "Your actual life of blooding" -weh} -- that is in quotes, b-l-o-o-d-i-n-g --
"is the source {SIC sb. "sort" -pla -def} of initiation, which
I regard is {SIC sb. "as" -def} the first essential for
a Caliph, oh {SIC sb. "for" -def}, say, 20 years hence.
The Outer Head of the Order must,
among other things, have had the
experience of was as it's an {SIC sb. "it is in" -def} actual fact [page 39]
today."
Q. If you turn to the next page and read the underlying part? This is page 5.
A. Page 5?
"Not {SIC sb. "Note" -weh -pla -def} that I treat you as a full member
of the Ninth Degree. Only celibacy {SIC sb. "Sorry that" -pla -def}
initiations {SIC sb. "grades" -def} could not be given in the
form prescribed."
He meant in between the initiation sex {SIC sb. "Second" -pla or "Six" -def} through Eighth Degrees.
Q. Finally at the top of page 5, would you read that, please?
A. Yes. He is prophesizing there in this letter.
"In 1965 should be a {SIC sb. "the" -def} critical period
in the development of a child Horus."
H-o-r-u-s
Q. What was he referring to with that?
A. Yes. The doctrine of the Order has been that the 1940s were a very stressful period of time, but the 1980s would be even more so.
And the child Horus is predicted or prophesized in our sacred text which is call the Book of the Law. And.
That means the whole development, such as we have here at the present time, people getting together [page 40] as cellmates {SIC sb. "Thelemites" -pla -def } and developing the concept of Thelema.
Q. What year did Karl Germer die?
A. 1962.
Q. In other words, three years before this reference?
A. He missed it only by about three years.
MR. MacKENZIE: Thank you, Mr. McMurtry.
I would ask that these be offered as Nos. 2 and 3.
THE COURT: Which ones?
MR MacKENZIE: Both of them that he testified to, Exhibits 29 and 30.
MR. MITTEL: Is it going to be necessary that we offer each of these documents that we have already stipulated are admissible?
THE COURT: No. The ones that have already been stipulated to, you need not offer them into evidence.
The ones in which there has been an objection, then counsel will have an opportunity to state the objection before admission.
MR. MacKENZIE: Do you need those copies?
THE COURT: I think it would be helpful when you refer to them for the purpose of the court clerk, if you would indicate that this is one that has been stipulated to or one that is contested. [page 41]
MR. MacKENZIE: Yes, Your Honor.
BY MR. MacKENZIE:
Q. Now, Mr. McMurtry, in addition to the -- to your appointment in the Caliphate letters we discussed, did you get any other appointments from Mr. Crowley?
A. Yes. When I visited him in Hastings, England in 1945 he appointed me as Sovereign Grand Inspector General of the Order. He gave {SIC sb. "He never gave" -pla} me the papers for that. It's the only appointment, only commission I had from him. It's the only appointment, only commission I had from him. But he did not write a document. But it was Sovereign Grand Inspector General of the Order, that I would investigate the loss of the library in 1969.
MR. MITTEL: I move to strike that answer as nonresponsive to the question and also on the ground of the Best Evidence Rule if, indeed, he is talking about a document that hasn't been offered.
THE COURT: He said there was no document, as I understand his testimony.
The objection is overruled.
BY MR. MacKENZIE:
Q. I show you Plaintiffs' Exhibit No. 26 and ask if you would identify that letter, please?
A. Yes. This is from Karl Germer to myself and dated January 12, 1946.
Q. Drawing your attention to the paragraph 3 up from [page 42] the bottom --
A. Yes.
Q. -- would you read that for us?
A. Certainly.
"AC wrote to me December 5" --
Q. This is Karl Germer talking?
A. Yes. Germer is quoting Aleister Crowley to me about me.
"I am very glad Grady has got in
touch with you. He seems to be" --
Q. Just the underlined parts, please.
A. Oh, the underlined. Okay.
"It's of course, part of his
duties as a Seventh Degree
Sovereign Grand Inspector General
is to do just this job of running around
certain things {SIC sb. "summing everything" instead of "around certain things" -pla -def} and reporting to
to you."
Q. What does a Sovereign Grand Inspector General do?
A. Basically this is a rank for people who have received the Seventh Degree and then can be designated to report on the affairs for the Outer Head of the Order or any of the top officers of the Grand Treasurer General or Grand Secretary General.
Q. As a Sovereign Grand Inspector General, did you [page 43] ever conduct any investigations?
A. Yes, twice.
When I was visiting Crowley in Hastings in 1945, when he gave me this commission, what we were discussing mostly were his problems with the group in California, Agape Lodge in Los Angeles.
So I told him at the time, "Well, when I get home, I will take a look at the situation and write you a report."
So in January of 1946 I flew from Berkeley to Los Angeles and I conducted a week's investigation of the Lodge's activity.
I wrote Mr. Crowley in January 1946 detailing my findings. That was the first time.
The second time was when I was apprised in 1968, '69 that the Crowley library had been burglarized. I resigned my job with the Federal Government in Washington, D.C. and came to California in that capacity of Sovereign Grand Inspector General of the Order to find out what happened, and I did.
Q. What conduct did you undertake in that latter investigation?
A. Yes. I and others made trips to Calaveras County where we contacted the District -- we contacted the Sheriff of Calaveras County. [page 44]
I was in touch through mail with the District Attorney of Riverside County and in touch by mail and in person with the Sheriff of Riverside County.
I also wrote reports which I mailed to the FBI and made a number of trips finding out what had happened.
Q. What was the conclusion of that investigation?
A. My conclusion after my investigation was that the library had been burglarized by a group in Los Angeles who we referred to as the Braytons, B-r-a-y-t-o-n-s.
Q. I show you Exhibit -- Plaintiffs' Exhibit No. 20. Did you receive any other authorization from Aleister Crowley?
A. Yes. I received two documents of authorization of which this is the first one, March 22, 1946. It's addressed Ex-Castrio De Minerval's {SIC sb. "Ex Castro nemoris inferioris" -pla or "Nemonis Inferioris" -def}
Q. What does that mean?
A. It's from the Neverwood {SIC sb. "Netherwood" -weh -pla -def}, because he was living in a boarding house called Neverwood {SIC same correction} on the ridge outside of Hastings. So it mentions that he is writing me a letter from Neverwood {SIC same correction}.
Q. Would you please read the pertinent portions of that?
A. Yes.
"This is to authorize Frater Hymenaeus [page 45]
Al" -- okay -- "of the Renter {SIC sb. "parenthesis" in place of "of the Renter" -def -pla} Captain
Grady L. McMurtry" in parenthesis myself
-- "to take charge of the whole work of
of the Order in California subject to the
approval of Frater Saturnus Karl Germer.
This authorization is to be used only
in emergency." {SIC quotation garbled at start, see exhibit}
Q. I show you Plaintiffs' 19 and ask you to identify that.
A. This is a second letter of authorization from Aleister Crowley. It's dated April 11, 1946.
Q. Let me just stop.
Did you receive both of these letters?
A. Yes.
Q. Fine.
A. Again -- again you wish me to -- I have identified it.
Q. I would like you to read the relevant portions underlined.
A. Yes.
"These presents," capital P.R. "to {SIC sb. "P are to" -def}
appoint Frater Hymenaeus Grady Louis
McMurtry Ninth Degree OTO as Our" -- capital O --
"personal representative in the [page 46]
United States of America and his
authority is to be considered by {SIC sb. "considered as..."? -weh}}
Ourselves" --- capital O for ourselves --
"subject to the approval, revision
or veto of our Viceroy."
Q. What's a "Viceroy"?
A. That is the ranking official in the country that has been designated by a king. Aleister Crowley was a king and he designated Karl Germer to be his Viceroy in the United States of America.
Q. So that this reference to "Viceroy" is to Karl Germer?
A. Yes. This is not only signed by B-a-p-h-o-m-e-t, Tenth Degree, and OHO, it's also sealed with his seal.
Q. I would like to show you Exhibit 27 and ask you if you would identify that, please?
A. Yes. I received his letter, which is a copy of a letter -- this letter was from Aleister Crowley to Karl Germer. So I have identified it.
Q. Thank you.
What's that handwriting at the top of the page?
A. Yes. There was a pendant, a little flier, and it had all the greetings and initials, and it says: [page 47]
"Dear Grady:" -- and it says:
"This is for Saturnus in case my
initial message to him in
Los Angeles" --
Q. Was it your understanding that you would deliver a copy of that to Mr. Germer?
A. It was my understanding that I was to apprise him. I didn't necessarily have to hand it to him. I did apprise him of it, and he acknowledge that.
Q. Okay. Turning to the second page, please, would you read that portion marked?
A. Um-hum.
Q. It's about two-thirds of the way down.
A. Right. That is right.
"Even apart from you," meaning Germer,
"Frater HA," meaning me, "has
authority which enables him to
supersede Frater Saturnus {SIC sb. "Frater 210" -pla -def}
whenever he pleases. The only limitation
on his power in California, any decision
which he makes is subject to revision
or veto by myself." {SIC sb. "yourself" -pla}
Q. Would you explain just what that means?
A. Yes. It means that Crowley wanted me to take care of the Order in California and revise it. However, I [page 48] was subject to being told, subject to oragation {SIC ? -pla} by Mr. Germer if Mr. Germer found it necessary.
Q. What about the prior requirement of approval? The previous document said you also needed the approval of Mr. Germer?
A. I believe both documents mentioned approval. Only one document mentions veto or revision.
Q. Is that latter document -- is this a latter document which does not mentoin {SIC sb. "mention" -pla -def} approval?
MR. MITTEL: Objection; leading.
THE WITNESS: I do not have the document in front of me.
BY MR. MacKENZIE:
Q. What is the date on this document?
A. The letter here?
Q. Yes.
A. 19th June '46.
Q. All right. I believe you testified as to the dates of the prior documents, 19, 20?
A. 20?
Q. Let me show you those again.
A. Oh, you mean the number 20?
Yes.
Q. What are the dates on those, please?
A. The first one is March 22, 1946. [page 49]
The second one is April 11, 1946. The one for March 22, 1946, I am to take charge of the whole works, Order in California, now subject to the approval of Mr. Germer.
In other words, if he approved what I was doing, fine .
In a later document --
Q. My point is this, Mr. McMurtry: The subsequent letter then no longer states a requirement of approval?
MR. MITTEL: Objection; leading.
THE COURT: Well, --
THE WITNESS: It does state "subject to the approval."
THE COURT: It's apparent on the face of the document.
MR. MacKENZIE: Fine. We will leave it.
THE WITNESS: It's subject to the approval.
THE COURT: Mr. MacKenzie, just a moment.
BY MR. MacKENZIE:
Q. I show you Plaintiffs' Exhibit 24 and ask you to identify that?
A. Yes. This is a letter from Karl Germer to myself dated August 1, 1946.
Q. Would you please read the underlined portions on the first page, the bottom two paragraphs? [page 50]
A. "I have decided to suspend Jack
Parsons'," P-a-r-s-o-n-s', his lodge
position. You should be present
at the meeting with Jack in the
first place and, as said before,
I would like the decision to be
made and executed in your name."
Q. What was the position of Jack Parsons?
A. He was the Lodge Master of Agape Lodge at that time.
Q. When you say "Lodge Master," does that -- is that the same thing as head of the lodge?
A. Yes.
Q. Is the head of a lodge different than the head of the Order?
A. Yes.
Q. What's the difference?
A. Lodge is a local group. The Order is considered to be national and international.
Q. What's your understanding of why you should be present at a meeting with Jack Parsons?
A. Because Aleister Crowley was confused as to what was going on in Los Angeles and Germer came from New York to Los Angeles. I flew down from Berkeley to --
Q. Why did Germer want you to appear -- [page 51]
A. Oh, to verify so that we would both be able to report to Aleister Crowley as to what had happened and if he needed -- if he needed to suspend Jack Parsons, I would be there for verification.
Q. It says, "I would like the decision to be made and executed in your name."
A. Yes.
Q. Does that not suggest something more than verification?
MR. MITTEL: Objection; leading.
THE COURT: Yes, that is leading.
Sustained.
THE WITNESS: Okay.
BY MR MacKENZIE:
Q. Would you please explain what that phrase, "I would like the decision to made and executed in your name," or what your interpretation of that is?
A. Yes. This was Mr. Germer's way of acknowledging my document of authorization for California.
Q. Would you briefly just state what is the significance of these last four letters of authorization that we looked at?
A. The last four?
Q. The letters of authorization.
A. The letters of authorization, the ones of April -- [page 52] let's see.
Those two documents of authorization give me the power to act in this country and California, especially, but in the country as Crowley's personal representative.
Q. Fine. Thank you.
Was there any time limit put on these authorizations?
A. Absolutely none.
Q. Do they state if they are to be voided upon the death of Aleister Crowley?
A. No, they do not.
Q. Did you ever talk to Karl Germer about these letters of authorization?
A. I talked to Karl Germer in Los Angeles during one of my investigations. I mentioned to him and asked if he needed to see them.
He said, "No." He was quite sure and abrupt in a sense. He said he had already seen them and he didn't need to see them again.
Q. Referring to the letter, Plaintiffs' No. 27, which you don't have in front of you, which is the one that Aleister Crowley wrote and sent you a copy of, sent the original --
A. Yes.
Q. It discusses "subject to revision or veto"?
A. Yes.
Q. Did Mr. Germer ever revise or veto any actions that you took?
A. Not officially. In the 1950s it became apparent to me that the Order was dying because Karl Germer refused to initiate.
As a result I took four trips to Southern California from Berkeley, one to Barstow and three to Los Angeles, to try to get the members of -- surviving of the Agape Lodge together to see if we could get some initiation going.
Mr. Germer was very unhappy with these visits of mine. He made it obvious to me he was unhappy and verbally in conversation and in his course. {SIC sb. "correspondence" -weh}
And since he had expelled Mr. Kenneth Grant from the Order, I saw no point in conducting my investigation against his wishes, so I quit.
Q. I am sorry. You what?
A. I saw no point in conducting my investigations, so I quit doing that.
Q. Quit doing your investigation?
A. Investigation to try to get the Order back together, because Mr. Germer would have taken some official action against me if I did not stop, but he [page 54] never did take such official action.
Q. I would like to show you Plaintiffs' exhibit No. 115 and ask if you would identify that, please?
A. Oh, yes.
THE COURT: What number?
MR. MacKENZIE: 115.
THE COURT: 115?
MR. MacKENZIE: Yes, Your Honor.
THE WITNESS: These are the minutes of Agape Lodge for September 17. It doesn't say what here, but in any case --
BY MR. MacKENZIE:
Q. Would you know what year or approximately what year, if not the year, the decade?
A. Well, certainly it was in the -- okay. It was in the -- sometime between 1940s, I believe.
Q. If you will take a look at the first line. I believe the date is on there.
A. Yes, Oh, yes. 1946.
Q. Would you please read the pertinent portions underlined?
A. Yes. Quote:
"Special meeting called. Short
business meeting of members.
Presided: Brother Karl Germer [page 55]
Brother McMurtry then took over,
stating that he spoke with the authority
he had received from Baphomet in Hastings,
which he read."
Q. Is that, in essence, your presentation of your authorizations?
A. I was in great pain to say, sure, that the Agape Lodge group knew that I had these authorizations from Aleister Crowley.
Q. I show you Exhibit No. 114 --
Just one last question: Who prepared these minutes, generally?
A. Generally speaking, that was Gene Wood. Gene, G-e-n-e, Wood was the secretary for most of these minutes in that time period. She was a lady.
Q. Looking at 114, I would just ask if you would read the initials of the three -- I had the three people receiving carbon copies of this.
A. This is the minutes of Agape Lodge for October 3, 1947 and of the people not present who received copies. Aleister Crowley, Karl Germer and Grady McMurtry.
Q. Did you occasionally receive copies of Lodge minutes?
A. Yes. As a matter of fact, up until the time that Agape Lodge ceased to function as an organization, I had [page 56] them to send me a carbon copy of the meeting.
Q. Well, after having received these authorizations, what was your position in the Order hierarchy?
A. I would be No. 3. Aleister Crowley was No. 1. Karl Germer, Grand General, was No. 2., and I was No. 3.
Q. Do you know if similar letters of authorization were sent or written by Aleister Crowley to other individuals?
A. I have never seen any letters of authorization giving powers written by Aleister Crowley to anybody else.
Q. Has anybody ever come forward and shown that they had such letters?
A. I have never seen such documents and Mr. Mellinger has such letters in which Aleister Crowley had given to him the letters he had written to me concerning our future positions in it. {SIC hopelessly garbled -weh}
Q. Who is Mr. Mellinger?
A. He was a member of the Ordo Templi Orientis for many years.
Q. And you are saying he had similar letters?
A. He had letters suggesting that Aleister Crowley valued him very highly and in case of emergency he might have well been called on to serve in such a function as I am serving now, that is, conservator of the property [page 57] and effects of the Order.
However, he never, so far as evidence is concerned, gave him any document of authorization to take charge of anything.
Q. Have you seen letters that Mr. Crowley had sent to Mr. Mellinger?
A. Yes, I have.
Q. Is there any reference to a Caliph in those letters?
A. No, not that I know of.
Q. Do you have any knowledge as to why Mr. Crowley may have sent such letters to Mr. Mellinger?
A. Yes. Mr. Crowley was looking for successors 20 or 30 years down the road. He knew that Karl Germer wouldn't live too long and Mr. Mellinger was a possibility.
Q. When did Mr. Crowley die?
A. In 1947
Q. All right. I show you Exhibit No. 9 and ask if you would tell us what that is?
A. Yes. This is the probate concerning Aleister Crowley's death and his last will and testament.
Q. If you would take a look at the portion that is underlined on the bottom, two lines of the typewritten will, continuing on to the top of the following page [page 58] what exactly is Mr. Crowley bequesting you?
A. "I give and bequest my books
and writings and literary effects
so collected to my literary
executor free of all debts,
duties on trust, because they
shall be -- they shall hand
the same to the Grand Treasurer
General of the Ordo Templi
Orientis" --
Q. Continue.
A. --- "for the simultaneous use and benefit
of said order."
Q. -- "for the simultaneous use" --
A. -- "for the simultaneous use
and benefit of said Order,"
meaning the Ordo Templi Orientis.
Q. In other words, he was bequesting his works --
A. -- to the Ordo Templi Orientis, not some other organization.
Q. Now, would you read the following section a little bit lower on that page?
A. Yes.
"I bequest free of all debts,
duties all the copyrights in [page 59]
my books and writings whatsoever
and wheresoever including any
copyrights over which the --
at the date of my death I may
have any power of disposition
to the Ordo Templi Orientis
aforesaid."
Q. Going back to the 25-percent interest in the "Magick Without Tears" that he had previously granted you, about how much prior to that was that grant made to you?
A. Let me see. Two years, as I recall. '45, '47.
Q. Well, after Mr. Crowley died then who succeeded him as the Outer Head of the Order?
A. Mr. Karl Germer.
Q. And I believe you -- you drew a distinction and de jure and de facto?
A. Yes. Aleister Crowley had proposed Mr. Germer to be his successor. It was to be made valid by an election of Ninth Degrees of which I was notified and which I was one at the time.
MR. MITTEL: Objection; foundation. Move to strike all that following the mention of the "de facto." No prior testimony about any election that was to be held or anything of that nature.
MR. MacKENZIE: I believe he testified the [page 60] procedure in which such an election should be held.
THE COURT: Why don't you rephrase the question?
BY MR. MacKENZIE:
Q. Mr. McMurtry, do you know what the manner of Mr. Germer's election was intended to be?
A. Yes. He was supposed --
MR. MITTEL: Objection
THE COURT: Yes. Lay a foundation first.
THE WITNESS: Okay.
BY MR. MacKENZIE:
Q. From you knowledge of the Order's Constitution through "Equinox", are you aware of what the procedure for a successor head of the Order is -- of election would be?
MR. MITTEL: Objection; leading. The use of the word "election."
BY MR. MacKENZIE:
Q. Then let me take out that word "election."
Based on your knowledge of the "Blue Equinox," do you know how the successor would fall into the position of the Outer Head?
A. The "Blue Equinox'" Constitution is based on the 1917 Constitution.
My memory of the '17 Constitution, of which [page 61] we have only had a copy for the last two months, is there could be an elector appointment, because the 1917 Constitution provided that the OHO may amend the Constitution by edict.
Q. Are you holding up all right?
A. Therefore he could appoint a successor other than having to elect.
Q. Are you holding up all right?
THE WITNESS: We will recess around 10:30?
THE COURT: Yes, we will recess.
THE WITNESS: I will hold up another ten minutes, I think.
MR. MacKENZIE: Fine, thank you.
BY MR. MacKENZIE:
Q. Now, based on that knowledge, do you know what the intended procedure from Mr. Germer's -- I don't want to say "election," but "accession" would be --
A. Yes. He was proposed by Aleister Crowley to begin his validation by the fellow members of the Ninth Degree.
And this was to take place within a year and a half -- I am sorry -- within a year and a day of Crowley's death.
MR. MITTEL: Objection. I move to strike this testimony. There is no ground for his testifying [page 62] what Aleister Crowley proposed to do.
THE COURT: Follow it up with another question.
On what did he base that knowledge?
MR. MacKENZIE: Yes, Your Honor.
BY MR. MacKENZIE:
Q. What do you base that answer on, Mr. Mcmurtry, the answer as to Mr. Germer's succession, the procedure followed?
A. Oh, the answer. We have it in the documents someplace. Didn't you already show it to me -- oh, no, you didn't.
In any case, there is a document in which Aleister Crowley specified that there should be a General Council of the Order to be -- position to be occupied by Ninth Degrees.
MR. MITTEL: Objection. That is in evidence, Your Honor.
THE COURT: He is testifying about a document. If we have it, let's have it.
If we don't he can testify what his knowledge is.
BY MR. MacKENZIE:
Q. Well, to continue with that a little further: Did Mr. Germer succeed to the Outer Head position in this [page 63] manner?
A. Yes. He was proposed by Aleister Crowley and upon Aleister Crowley's death, he became Outer {SIC sb. "Frater" -def} Superior and de facto OHO and continued in that position.
Q. Why do you say "de facto"?
A. Because no General Council was ever held, and he was never given the verification of the other members of the Order.
Q. I see. But he acted as the head of the Order?
A. Yes, he did.
Q. Was he regarded as the head of the Order?
A. He certainly was.
Q. Fine. Thank you.
I show you Plaintiffs' No. 23 and ask if you recognize that, please?
A. This is a letter from Aleister Crowley to Karl Germer dated 6 June 1947.
Q. About how long before his death did he write that?
A. About five months.
Q. Okay. Would you read the portion underlined, the bottom paragraph of the first page?
A. Yes. Speaking to Mr. Germer:
"You seem in doubt, too, about
the succession. There has never
been any question about this since [page 64]
your reappearance. You are the
only successor of whom I have ever
thought since that moment. I have,
however, had the idea that in view
of the disbursement of so many members,
you might find it useful to appoint
a triumvirate to work under you.
My idea was Mellinger, McMurtry
and I suppose Roy Leffingwell."
Q. Turning to the bottom paragraph of page 2 --
A. Yes.
"I shall leave it entirely to you to
decide about your triumvirate before {SIC sb "after" -weh} my
death."
Q. Did Mr. Germer ever make any -- to you knowledge -- ever make any decision on this triumvrate?
A. Apparently he made a decision which was negative, because I didn't -- all right. Fine.
Q. I show you Exhibit No. 35 and ask if you can identify that?
A. Yes. This is a letter from Karl Germer to Mr. Grady McMurtry. It's dated March 1, 1948.
Q. Two years after the prior letter then?
A. Um-hum.
Q. What is being suggested in this letter? [page 65]
A. "I don't want the property in my name.
I want it in the -- in that of the
Order. To that end we must legalize
the OTO formally. And I don't know
how to do this properly in the State
of California. As officers I include
you" -- I am sorry -- "As officers
I want three Brothers who have been
connected with Grand Lodge. This
includes you, Frederic Mellinger
and I think Max Schneider and Jane
Wolfe, if a female can, according
to the Constitution, be appointed
as an officer which I think can be
done."
Q. Continuing with the next sentence?
A. Next sentence? I don't see another sentence underlined.
Q. The following sentence.
A. Right. I am sorry.
"As soon as this is accomplished,
the property can be put into the
name of the Order."
Q. Now, did Mr. Germer speak to you specifically about wanting you and two others to incorporate? [page 66]
A. Well, to incorporate? Now, that was different.
Q. Did he discuss it with you?
A. Well, yes. We discussed the corporation when we met with Jack Parsons in about -- what was that -- 1948.
Q. Was the Order incorporated?
A. No, it was not. It should have been. Mr. Parsons -- I visited an attorney with Mr. Parsons in that time period.
And the attorney was going to draw up the papers, but then -- I never heard anything from Mr. Parsons after I returned to the Berkeley-San Francisco area.
Q. Do you know if Mr. Germer still wanted the Order incorporated?
A. At that time he did, but his opinion later I do not know.
Q. Are you familiar with the Order as it was conducted under Aleister Crowley?
A. Yes, I am.
Q. And under Karl Germer?
A. Yes.
Q. Can you state if there were any differences between their conduct?
A. There were considerable differences. Aleister Crowley encouraged initiations, encouraged bringing [page 67] people into the Order, encouraged the teachings of our various ways of looking at things.
Karl Germer refused to initiate and he did not hold meetings. And he simply allowed the Order to die so far as organized membership was concerned.
Q. In what manner did he discourage meetings?
A. He never held any. And when I tried to discuss with him the possibility of bringing new people in which was, of course, the reason for my visit to Los Angeles, he was very abrupt and suggested that I was trying to undermind {SIC sb. "undermine" -def -weh} the Order.
THE COURT: Mr. MacKenzie, could you take a recess at this time?
MR. MacKENZIE: I will be happy to, Your Honor.
THE COURT: Mr. McMurtry, you may step down for a few moments.
(Brief recess taken.)
THE CLERK: Mr. MacKenzie, we are ready to resume.
THE COURT: Yes, proceed.
THE CLERK: Mr. McMurtry, you are still under oath. You recognize that?
THE WITNESS: Yes.
GRADY LOUIS McMURTRY, [page 68] having been previously sworn, resumed the witness stand and was examined and testified further as follows:
DIRECT EXAMINATION (Continued)
BY MR. MacKENZIE:
Q. I would like to ask you what the word "Order" refers to in your parlance?
A. The "Order" -- the word "Order" in my understanding is Ordo Templi Orientis as specified by Aleister Crowley in his last will and testament in which he was giving his last effects to OTO.
In that will he also specified the Order. By the "Order," he meant the Order of Ordo Templi Orientis in the will.
Q. Thank you.
I would like you to take a look at Plaintiffs' Exhibit No. 42.
A. Yes, this is a flier. I see {SIX sb. "say" -weh} a flier, the above one, because it was attached to a letter to me from Karl Germer.
Q. Okay. If you would read the underlined portion in the middle of that sentence, please?
A. In the middle of the sentence, yes.
... "the Council shall discuss
the existing condition of the
Order, that is A.'.A.'."[page 69]
Q. Now, what's -- is A.'.A.'. a part of OTO?
A. No, it's not. It's an entirely separate organization.
Q. It's another organization?
A. I speak of it as an organization. Technically, A.'.A.'. has no organizational structure.
OTO is organized and the material universe is at work.
A.'.A.'. is strictly individual instruction from one person to another. There is no organization as such.
Q. Are there some OTO members who are A.'.A.'. members?
A. Yes. As a matter of fact, quite a few.
Q. But it's your testimony that there is no overlap of the two organizations?
A. I didn't say overlap. I say they are two different organizations. The organizations -- there is no overlap except individual members may be members of both groups.
Q. Now, when Karl Germer is here speaking of the Order, is it your understanding he is speaking of the OTO or of the A.'.A.'.?
A. Karl Germer -- this note was from -- okay. The problem with Mr. Germer, he quite often confused OTO with A.'.A.'.
He referred to A.'.A.'. as the "Order," because [page 70] it's an innermost secret sort of thing and technically of a higher order. However, it has no relation to the Ordo Templi Orientis.
Q. Thank you.
I ask you to look at Plaintiff's Exhibit No. 1.
A. This is a letter from Karl Germer to myself. It's dated November 10, 1959.
Q. Now, in it there is a reference to a debt. Would you explain what that debt refers to?
A. Yes. Sometime in our -- 1956 or '55, something in there -- Karl Germer loaned me the money to buy an automobile.
And as I recall, it was somewhere around 300, $350, and which I was going to pay him periodically about $10 a month until it was paid off, which I did.
Q. Did that debt have an effect on your relationship with Karl Germer?
A. Yes. That debt really deteriorated the relationship between myself and Mr. Germer, because at the time I was a graduate student at the University of California and I was having difficulty coming up with $10 a month.
But, however, I did finish paying the bill. He became extremely unhappy with me because he felt I [page 71] should have paid it sooner.
Q. Well, is it fair to say you had the deterioration with the relationship with Karl Germer?
A. Yes, it is.
Q. What do you think was the principal cause of that deterioration?
A. Mr. Germer, while he was in New York, was very favorable to the entire situation in California.
However, when he came to california in 1950 he ran into a number of difficulties. Some people did not pay back their debts to him.
As a consequence, he became very disillusioned with the entire organization and after that simply disregarded it.
Q. Were you an active member of this Order at the time of his death?
A. Yes. At the time of Mr. Germer's death?
Q. Yes, during these years.
A. I was involved with the Order. I considered myself a member of the Order, but there was no organization to report to.
Q. Was that debt repaid?
A. The debt on the automobile, yes.
Q. Now long did you then remain in California?
A. Form what date, sir? [page 72]
Q. After the car loan.
A. Oh, right. I remained in California until 1961.
Q. What did you do in '61?
A. I took a job with the Federal Government in Washington, D.C. with the Treasury Department as a management intern for a year, and then with the Labor Department as a training officer.
Q. Now, while you were -- let me show you Plaintiffs' Exhibit 81. Just hold on to that, please. Take a look at that, if you would.
A. Um-hum.
Q. While you were out in Washington, D.C., did you maintain contact with members in California?
A. Yes, for quite awhile up to 1962. I was writing to Mildred Burlingame, and I was writing to Jean Sihvonen, S-i-h-v-o-n-e-n, in Barstow, California.
Q. Did you -- this is a letter that you wrote?
A. Yes. This is a letter from myself to Jean Sihvonen on January 31, 1962.
Q. What was the purpose of this letter?
A. I received a letter from her, and I was responding.
And I was sending her some Aleister Crowley material I had promised her previously.
Q. Drawing your attention to the bottom four lines of the middle paragraph, beginning with the fourth line [page 73] from the bottom that starts: "But I suppose it could form the basis," would you take a look at that, please, and then tell us what you were intending?
A. Oh, yes. I was trying to enlighten her concerning some of the correspondence and documents of authorization from Crowley. And what I say is:
"Not that it makes a great deal of
difference. As I said at the time
we were originally discussing this
makes action contingent on Karl's
say-so, but I suppose it could form
the basis for legal action to
recover AC's letters and things.
We want to keep Sascha from having
them in case Karl does not let us"
-- end quote.
Q. What was your intention with the library?
A. To conserve it for the Order.
Q. I see. Thank you.
Following this letter, when did you next have a correspondence or communication with another OTO member?
A. During my time in Washington, D.C. after a certain period of time we simply stopped writing to each other until Phyllis Seckler wrote me in 1968. [page 74]
MR. MacKENZIE: May I ask, Your Honor: I am assuming that everything I have so far produce has been introduced, although I know that Mr. Mittel has some objection.
I think your objection for 42 is incomplete. If that is still outstanding, I would at this time like to offer that.
THE COURT: Which exhibit?
MR. MacKENZIE: Exhibit 42. We just did that one.
MR. MITTEL: I do object.
THE COURT: Just a second.
MR. MITTEL: It's incomplete.
THE COURT: Well, will you lay a foundation for what it is, Mr. MacKenzie, and I can rule on this.
BY MR. MacKENZIE:
Q. I would like you to take a look at 42 again, if you would.
A. Yes.
Q. Tell me if there is something missing with that letter. Is there another page? Was there another page?
A. This is not a letter. I received a letter in which a piece of paper this size was stapled to it and this was a notification stapled to the letter. [page 75]
Q. Did the letter refer to that notification you have in your hands?
A. There was some general reference.
However, this was the thing on which we based the idea of calling together a General Council.
THE COURT: Who wrote Exhibit 42?
THE WITNESS: Sir?
THE COURT: Who wrote Exhibit 42?
THE WITNESS: Oh, this? The Saturnus, Karl Germer. We identify this by his signature, because it's a seal. This is the way he signed most of his documents.
THE COURT: Do you know what document this was attached to?
THE WITNESS: There is a letter from Aleister Crowley -- no, I am sorry. It was a letter from Karl Germer to myself.
THE COURT: Do we have that exhibit?
MR. MITTEL: Your Honor, I may be able to obviate all of this by asking the witness one question.
THE COURT: Go ahead.
VOIR DIRE EXAMINATION
BY MR. MITTEL:
Q. Mr. McMurtry, do I understand your testimony to be that this letter is about the A.'.A.'. and not about the [page 76] Ordo Templi Orientis?
A. The letter was not necessarily about that. This notice was about that. The letter was basically business of the Order at the time.
Q. This exhibit speaks only to the A.'.A.'. not to the Ordo Templi Orientis?
A. That is what it says there. However, it was the -- the election was to be Ninth Degree of the OTO.
Q. Give me a yes or no.
Is this exhibit about the Ordo Templi Orientis.
A. The exhibit is about the A.'.A.'.
MR. MITTEL: In that case, Your Honor, I withdraw the objection.
THE COURT: Fine.
42 may be admitted into evidence.
(Plaintiffs' Exhibit 42
previously marked for
identification was received
in evidence.)
DIRECT EXAMINATION (Resumed)
BY MR. MacKENZIE:
Q. Following your 1962 letter to Jean Sihvonen, when did you next have correspondence or communication with someone in the OTO?
A. 1968 from -- Phyllis Seckler wrote me and apprised [page 77] me of the burglary of the Aleister Crowley library at West Point, California.
Q. Is Phyllis Seckler and OTO member?
A. She is.
Q. What was it that she told you?
A. She wrote me that the Aleister Crowley library had been burglarized and wanted to know if I knew anything about it.
I wrote back and said, "I certainly did not."
But through the correspondence, arrangements were made for me to come to California to investigate.
Q. Did she talk to you about any of the accusations that had surrounded that theft?
A. Yes. There were the accusations that -- Sascha Germer wrote an accusation against Phyllis' daughter, Stella, S-t-e-l-l-a, and accused her of being the woman who had come to the front door and sprayed some kind of acid in her eyes and had blinded her.
Q. After receiving this letter, what did you do next?
A. Well, for one thing I wrote a letter to Sascha disclaiming all of this.
And, of course, Phyllis wrote letters to her disclaiming it.
Q. Did you return to California?
A. Yes, I returned to California in the spring of [page 78] 1969.
Q. What was your position with the Government?
A. I was with the Department of Labor at the time. I resigned that position because of Aleister Crowley having appointed me the Grand Inspector General of the Order and it was my duty to come to the West Coast to find out what had happened.
Q. You undertook an investigation, did you?
A. Yes.
Q. What did that consist of?
A. That consisted of talking to everybody, to Dr. Francis I. Regardie, R-e-g-a-r-d-i-e.
I also talked to Mildred Burlingame who is the one who had known the Braytons and from whom the Braytons had taken the material originally.
Q. Was Mildred Burlingame an OTO member?
A. Yes, she was.
Q. Go on.
A. So I talked to Mildred Burlingame. I talked to Dr. Regardie, and we knew that from various evidence that these were the people who had taken the material.
Q. Did you contact any authorities?
A. Yes. I contacted personally, that is, in person, the District Attorney of Calaveras County where the burglary had taken place and also the Sheriff of [page 79] Calaveras County. And I wrote to both of them.
I also contacted by mail the District Attorney of Riverside County where the Braytons had the material.
And I also met the sheriff's -- one of the sheriff's deputies from Calaveras County personally.
I also wrote my reports to the FBI.
Q. So you prepared a report after your investigation?
A. Yes. I prepared -- well, in the fortunate sense I wrote all of these letters, so the information would be available.
There was no reason to write a formal report, because I would only be reporting to myself.
Q. What was the result of your investigation?
A. That a group in California, the Braytons, Jean Brayton, B-r-a-y-t-o-n, and her husband had engineered the burglary and they had taken this material back to Los Angeles.
Q. What year did Karl Germer die?
A. In 1962.
Q. So Sascha had possession -- his wife had possession of the library at this time?
A. Yes.
Q. What was the status of the OTO at the time?
A. Organizationally it was nonexistent. There were [page 80] individual members of the Order who considered themselves legitimate members of the Order, but there was no organization.
No organization, no meetings -- no organization, no meetings, no initiations.
Q. Did you inform Sascha of your investigation.
A. No, I did not.
Q. Okay. I show you Document No. 13 and ask if -- ask you to take a look at that?
A. This letter was written by me to Mrs. Sascha, S-a-s-c-h-a, Germer in West Point, California. It's dated October 25, 1970.
Q. Do you state your conclusion --
A. Um-hum.
Q. -- in that letter?
A. Yes.
"Phyllis has made this investigation
as a friend of yours and because she
wishes to clear the name of her daughter
Stella, she could not have possibly
have been the woman who assaulted
you, I have made this investigation
in my official capacity as Sovereign
Grand Inspector General of the OTO,
a position Aleister appointed me to [page 81]
in" --
I say '46. Of course, it was '45.
-- "and because in 1956 {SIC sb. "1946" -weh} Aleister
Crowley also gave me documents of
the organization as his personal
representative in the United
States of America to take charge
of the affairs of the OTO in
California, specifically.
As you will see my authorization
is an emergency power subject to
Karl's veto while alive, but
automatically going into effect
so that there would be one to
follow after Karl's death."
Q. Thank you.
MR. MacKENZIE: I would, Your Honor, ask that that be introduced as an exhibit.
MR. MITTEL: Objection; hearsay.
MR. MacKENZIE: Your Honor, I think this is a report -- first of all, it's in the report, also in the letter and could be an impression --
THE COURT: What is the portion that you object to as hearsay --
MR. MITTEL: The whole letter. [page 82]
THE COURT: It's his letter. He wrote it.
MR. MITTEL: I have no objection to the testimony, but I don't think the letter can be admitted.
THE COURT: What is the purpose of this being offered?
MR. MacKENZIE: The purpose is principally, Your Honor, that Mr. McMurtry continued in an official capacity as OTO.
The defendant will argue that he more or less neglected the organization or abandoned it.
Secondly, he is restating his Crowley authorization granting him the certain powers, and that shows he has maintained this all along, but that is principally it, Your Honor.
THE COURT: The objection is overruled.
BY MR. MacKENZIE:
Q. Did you get any kind of response from Sascha Germer to your letter?
A. No.
Q. Now, this is letter is dated about 1970?
A. Yes.
Q. Would you explain -- did you undertake any activity on behalf of the OTO after returning to California other than that investigation? [page 83]
A. Yes. As a consequence of my return to California, I would discover that Aleister Crowley's terra {SIC sb. "Tarot" -pla -def} cards known as Thoth, T-h-o-t-h, was available for publication in color.
Q. Could you explain for a moment what those cards are?
A. Terra {SIC sb. "Tarot" -pla -def} cards are symbolic references to the psychic bodies of individuals and it has a very close relation to Yoga in the sense that each part is laid out in an interpretative fashion.
Q. When you say "Aleister Crowley's terra [SIC sb. "Tarot" -pla -def] cards," can you explain that?
A. Aleister Crowley had in 1970 {SIC sb. 1940's -weh} designed in terra {SIC sb. "Tarot" -def -weh} cards as the authority, Thoth, T-h-o-t-h.
These cards were put into execution in England by Freda Harris, F-r-e-d-a, Harris, and were painted by her in water color.
This then became the -- these paintings, when we make color slides out of them and then had them printed as cards.
Q. How did that involve your activity on your return to California?
A. Very much so. Because in the process of investigation of the Braytons for the burglary, I discovered, as I said, that those decks were available [page 84] for publication in color.
So at that time I wrote to Mr. Gerald Yorke, Y-o-r-k-e, Gerald Yorke in England, and I enclosed a xerox of a set from Aleister Crowley to myself in which he had acknowledged that I have given him 250 British pounds at the time to get the "Boot of Thoth" published in England.
So I sent this xerox of this set to Mr. Yorke, whereupon he wrote back and gave me first refusal to ownership of publication, which I did.
Q. Which you did, you mean on your on {SIC sb. "own" -weh} behalf or for the Order?
A. I did it personally, but I did it for the Order.
Q. Did you have any identification of the Order printed on the cards?
A. Yes. There were two identifications. One was on the case in which the deck came enclosed which had the number of the Order of the deck itself.
There was a Caliph card along with the other cards telling where this deck had been published and giving my name and address in Dublin, California.
Q. Did it give the name Ordo Templi Orientis?
A. Yes. And lamen, l-a-m-e-n.
Q. Did you undertake any other activities at this early stage? [page 85]
A. Yes. Phyllis and I founded the College of Thelema in which I put my talent to administrative analysis to get it formed organizationally.
We had an organization called Continuum, C-o-n-t-i-n-u-u-m.
And we had people coming by to discuss things with us, and we were also mailing out things.
This would eventuate informal classes, summer lectures, and things of this nature.
Q. Can you briefly tell the Court what the College of Thelema is?
A. Yes. It's a group of people basically under Phyllis Seckler, who used to be Phyllis McMurtry, and she operates out of Woodland High School.
She has her correspondence, and every once in awhile they get together for meetings.
Q. Did you initiate any members?
A. Yes, we did. We initiated a number of members over a five-year period.
Q. As regard the initiations, by what authority were you initiating?
A. As a Ninth Degree Ordo Templi Orientis, it was my obligation to initiate when I could.
Q. Are there any documents of authorization that you act under? [page 86]
A. Well, at the beginning of the course with my Ninth Degree papers from Crowley in '43 and the two Frater {SIC sb. "Caliph" -def} letters and, of course, the two documents of authorization.
Q. Are these also called -- are these things called charters?
A. The word "charter" is not mentioned, nor is the word "patents."
However, they take the place of it, a patent or a charter.
Q. Do you need a charter to initiate someone?
A. Yes, you do.
Q. Now, where is this stated?
A. In the ritual of Ordo Templi Orientis in the Third Degree ritual it's specified, "I will not initiate or preport to initiate without a charter from Baphomet," B-a-p-h-o-m-e-t.
Q. Has this rule for Third Degree initiation, has that ever appeared in print?
A. I do not recall it having been in -- appearing print unless, of course, it's in Francis King's book, "The Secret Rituals of the OTO."
I have not researched that particular question in his book.
Q. Thank you. [page 87]
I would like to show you Plaintiff's Exhibit NO.44 and ask if you would identify that, please?
A. Yes. This is a Certificate of Registration of name and insignia of an unincorporated nonprofit association which was -- which I applied for and received in 1971.
Q. Fine. Thank you.
A. The name of the organization, Ordo Templi Orientis.
Q. When did you first hear of Sascha Germer's death?
Primarily I should ask: When did she die?
A. Sascha Germer died in -- oh, boy. I believe it was 1975, as I recall.
Q. When did you first hear of her death?
A. In 1976. I believe it was Helen Parsons Smith who discovered the death, and so informed me.
Q. Had you any correspondence with Sascha?
A. No.
Q. Now, about the time of learning of her death, did you know Jim Wasserman?
A. I knew Jim Wasserman in the middle of 1967 {SIC may be "1976"? -weh}. I may have heard of her death before then. I do not remember.
Q. Fine. Well, did you discuss with Him Wasserman your claims in the OTO?
A. I imagine I did, because he took the Minerval Degree of initiation in OTO.
Q. In your discussions with Mr. Wasserman, did the [page 88] name Marcelo Motta come up?
A. Yes.
Q. Did Mr. Wasserman discuss with you Mr. Motta's claims?
A. Yes.
Q. What were your reactions?
A. At that time things were extremely unclear.
However, it was our impression that Mr. Motta had met Mr. Germer and that they had conversed.
And, for all I knew, some initiation might have taken place, although it seemed somewhat dubious.
Nevertheless, I was willing to believe, based on future evidence, that he was a member of some kind of order.
Q. At the time you were making these -- having these reactions, did you have access to the library?
A. We did not have access to the library until we brought down the Superior Court order in Calaveras County.
Q. That is fine. I just want to establish if at the time you were talking about Jim Wasserman you had access to the library so as to verify the claims Mr. Motta was stating?
A. We brought down the materials from Calaveras County, and he took a look at the material. [page 89]
Q. That was subsequent to your discussions with Mr. Wasserman?
A. Yes.
Q. Did you have any access to the library in the years prior to the Calaveras Court decree?
A. NO.
Q. Did you ever write to Mr. Motta following this meeting with Mr. Wasserman?
A. Yes. In 1976 I wrote to Mr. Motta, apprised him of the Superior edict coming down and I offered him peace, that is, to say if he had the legitimate A.'.A.'. initiation from Mr. Germer, I would recognize it.
In the meantime, I -- meantime he recognize my legitimate document from the OTO from Aleister Crowley.
Q. Are you saying you believed he was not an OTO member?
A. I did not know he was an OTO member, but I was willing to accept that he might be in England.
Q. I see. What was his response?
A. He wrote back and threatened to sue me, demanded xeroxes of everything in the library, which is financially impossible, and offered to send no money in regard to it, demanded access to the library, but he did not ask for his personal correspondence back, curiously [page 90] enough.
Q. I would like to show you Plaintiffs' Exhibit No. 51 and ask you to identify it.
A. Okay. Yes. This is a letter form {SIC sb. "from" -pla} Mr. Motta to myself dated 29 July 1976 written from Brazil.
THE COURT: What is the number?
THE WITNESS: 51.
BY MR. MACKENZIE:
Q. Would you please read the underlined portion in the middle of the first page, the full paragraph?
A. Mr. Motta says:
"It's never been my intention to claim
the grade of OHO as I have repeated
prior consequences as {SIC sb. "in private correspondence and" -def} stated in print.
However, I shall still have the
intention of supervising the election
of the OHO in five years from the date
of publication of "Equinox" 5 No. 1 as
per the Manifesto. You may" -- "or may
not" -- "be a candidate at that time."
The following, paragraph 2?
Q. No. Thank you.
But if you will turn to the bottom of page 2, I would like you to -- let me just ask you one question: Based on that, was it your belief that Mr. Motta was an [page 91] OHO?
A. No, I didn't think he was OHO.
Q. If you would read to us the bottom of page 2 and the top of page 3?
A. Yes. Mr. Motta writes:
"I will rebate your proposal with a
counter-proposal. I want xeroxes
of all of the unpublished material
in the Thelemic library without
exception. If you refuse to provide
these, I cannot take you to court
at present as James Wasserman has
undoubtedly informed you that I do
not have the necessary funds to do
so, but I will take you to court
eventually. And once more, I will
win. You are trying to bypass a
legitimate heir" --
Q. Thank you.
That is sufficient.
How many documents were in that library?
A. It's really impossible to tell. There is no way for Phyllis and I to properly inventory the Thelemic material, except over a period of time. Phyllis was trying to do that after we got it back. [page 92]
Q. Was the material in boxes?
A. Yes. It was mostly in boxes. And I believe it was four filing cabinets.
Q. Do you know how many boxes there were?
A. Around 40, as I recall.
Q. Okay. Now, he says here:
"You are trying to bypass a
legitimate heir."
Mr. Germer, {SIC sb. "heir (Mr. Germer)" -def} on page 2.
A. Yes.
Q. Do you know what was intended by that sentence?
A. Yes. It's Mr. Motta's contention that Karl Germer gave him some kind of authorization in his meetings with him in 1956, I believe, and that these -- this authority from Mr. Germer made him some kind of a successor.
However, the truth of the matter is that no successor was named by Mr. Germer.
Q. In requesting copies of the library did Mr. Motta enclose any money?
A. No, he did not.
Q. Did he offer to pay for it?
A. No.
Q. Now, going down into the following next paragraph, let me just read a portion of it to you. He says:
"Only documents from Saturnus 10 {SIC sb. "X" -def} OTO [page93]
are valid."
Is this your belief?
A. I am sorry. Sir?
Q. On page 3.
A. On page 3, what paragraph?
Q. Just a minute.
Looking at that, is that your belief that only documents from Saturnus 10 {SIC sb. "X" -def} are valid?
A. No, it's not.
Q. Who is Saturnus 10? {SIC sb. "X" -def}
A. Saturnus OTO would be Karl Germer.
Q. Reading on, if you would, the following sentence, please?
A. Very well.
"And only documents from the
Saturnus" -- "and failing this
the OHO will have eventually
been {SIC sb. "to be" -def} elected, but this shall
be done by Brother N {SIC sb. "Brethren" -def}
who request I {SIC sb. "can either" in place of "request I" -def} prove a legitimate
line of succession from Crowley
to Germer or from Germer and people
who I recognize from their blank {SIC sb. "strength of" -def}
character and degree destructive {SIC sb. "probity and true dedication" in place of "and degee destructive" -def}
{SIC should insert "as deserving the honor of" at this point -def} participating in the election." [page 94]
Q. Correct me if I am wrong: Is he talking about successor that will have to be elected?
A. Yes. The successor can be proposed, but to be validated there should be an election, consent of the body.
Q. When a Head of the Order dies, are the documents that his predecessor gave to other people, do they become immediately invalidated?
A. No, they do not.
Q. What do you base that on?
A. Well, Aleister Crowley's documents of operation to me, for example, have no time on it.
On the other hand, Mr. Germer's authority had time limits, because he was de facto, not de jure.
Q. Now, if I read to you the sentence out of the bottom paragraph:
"I honestly intended to have no OTO
juristdiction in the United States."
What did you understand that to mean?
A. It seems a straightforward statement by Mr. Motta that he at one time, at least, had intended not to have any OTO jurisdiction in the USA.
Q. Now, getting back to the Calaveras Court, would you explain what that involved?
A. Yes. It involved, of course, getting money [page 95] together for the court case. The issue in the case --
MR. MITTEL: Objection, Your Honor, to any testimony about anything other than what factually transpired in the Courthouse.
I don't think he is competent to testify about the meaning of that decision.
THE COURT: No, he is not, but I have a copy of the Order of the Court, and I think I can filter out the things that he is testifying to.
THE WITNESS: In respect to that, sir, yes. The issue in the case was to separate the Order OTO material that is the Thoth Library from Sascha Germer's personal effects.
BY MR. MacKENZIE:
Q. And it's your testimony that you filed a petition with the Court in order to do that?
A. Yes.
Q. And thereafter you got a Court Order and possession of the material was given to you?
A. Yes.
Q. What did you do with the library after that?
A. Well, we hired a U-Haul truck and brought it down to Dublin, California, to Phyllis' and my house in Dublin.
We stored it in her garage, and I started to [page 96] separate Sascha's personal material from the Order material.
Q. Let me show you Plaintiffs'' Exhibit 130 and ask if you recognize that?
A. I do not recall this really but, yes, I see. 1976. This is a letter to me from Mr. J, Daniel Gunther, G-u-n-t-h-e-r. It's dated September 8, 1976.
MR. MITTEL: Objection.
THE COURT: He is just identifying the document at the moment.
MR. MITTEL: He is starting to read from it. I believe.
MR. MacKENZIE: You Honor, I think this is an exception from the Hearsay Rule, but the way.
I think the testimony will show that Mr. Gunther was Mr. Motta's agent or representative for the United States, and so you have a declaration against interest by a party opponent agent.
THE COURT: First of all, who is Mr. Gunther?
THE WITNESS: Mr. Gunther was a member of Mr. Motta"s A.'.A.'.
THE COURT: Okay. Just a second.
Let me read it.
BY MR. MacKENZIE: [page 97]
Q. Did you receive this letter?
THE COURT: Just a second.
MR. MacKENZIE: I am sorry.
THE COURT: Well, I question whether it's hearsay, because it doesn't seem to me it's really making a statement.
MR. MITTEL: I have an authenticity objection which I haven't gotten out yet.
THE COURT: Go ahead and make your objection.
MR. MITTEL: That is it.
We have no testimony at all about the witness recognizing the signature or anything else that would authenticate the letter.
THE WITNESS: His signature is on here.
BY MR. MacKENZIE:
Q. Do you recognize that signature. Did you receive other copies from him?
A. Yes, I did.
Q. Is that the same --
A. It certainly looks like Gunther's signature as far as I can tell.
THE COURT: What is the hearsay objection,because I really don't think there is any statement in here. It's merely being offered as to the [page 98] truth of the statement.
MR. MITTEL: It's being offered to show that Mr. Gunther is Mr. Motta's agent.
THE COURT: Is that it? Is that the purpose of your offering?
MR. MacKENZIE: Two things, Your Honor.
Number one, he got the power of attorney at this time, because prior to this Mr. Wasserman had had the power of attorney from Mr. Motta.
And this letter itself does not state that he is the United States representative, but I can show that with my other witnesses.
THE COURT: Well, I am going to sustain the objection until you lay the foundation with the other witnesses.
MR. MacKENZIE: May I question him about the contents of the letter?
THE COURT: Yes, subject to being stricken as hearsay.
MR. MacKENZIE: Yes, Your Honor.
BY MR. MacKENZIE:
Q. Did you receive this letter, Mr. McMurtry?
A. I certainly received it, but it was a long time ago, and I haven't reviewed it recently.
Q. Okay. That is fine. [ page 99]
Do you recognize Mr. Gunther's signature?
A. I recognize it as being a signature that I would believe was Mr. Gunther's, yes.
Q. That is fine. Thank you.
Now, at the time that this library material was started at Miss Seckler's, where was that located?
A. That was located on Jasmine Court, Dublin, California.
Q. Were you living there at that time?
A. No. At that time I had left that residence at the end of 1974 to live in Berkeley, but I had visited there quite often. And we brought the library back there, because it was the only storage place we had.
Q. You and Mrs. Seckler were living together at one point?
A. Yes. We were living together from 1969 to 1974.
Q. Now, when you returned to Berkeley, did you take any of the library material with you?
A. I removed some of the material and took it to Berkeley for my own edification and research material.
However, I never removed anything from the library because the library was in my custody according to the Superior Court Order.
What I did was remove it from her house.
Q. Can you describe some of the material you removed? [page 100]
A. Yes. I took one copy of the Liber Aleph.
Q. Would you explain what the "Liber Aleph" is?
A. It's a series of documents from Aleister Crowley to a future and supposedly magickal son.
Q. Go on. Give us a description.
A. Yes. And Mr. Motta had been able to help Mr. Germer get that published. It was published in Brazil. I took one copy. It must have been at least 20 copies there bound.
I found in the library two old vinyl '78 -- '76 -- '76, '78, whatever, recordings. And when we put them on the record player, it turned out to be Aleister Crowley doing certain Enochian, E-n-o-c-h-i-a-n, chants.
Q. Now, was there anything else you removed?
A. Yes.
There was a book by -- yes. There was Legge, L-e-g-g-e.
Q. You don't need to enumerate each book.
A. I took several things for my own recognizance. I didn't remove anything from the library.
The library -- it didn't belong to me, but I was conservator in the Court Order.
Q. Was there any menus in the collection?
A. Yes. There was a small collection of menus.
Q. What exactly do you mean by "menus"? [page 101]
A. Aleister Crowley was a favorite visitor in London Cafe Royale. And it was his practice at that time -- although there is no dates on these, we know about the period -- to print up his own menu card, that is to say, print cards with OTO lamen on them.
Q. These were recipes?
A. No, they were menus.
And then he would hand them in to the waiter and the waiter handed them back, and he kept a collection of these. And I found a small collector's --
Q. Did you take some menus?
A. Did I take them? I took them with me, yes.
Q. Were there other things that you took at that time?
A. A novel by James Daniel Gunther called "The High Place."
Q. Okay.
A. And addenda of various kinds.
I think an antique Bible, or something like that.
Q. Okay. Who did you believe was the owner of this material?
A. The Ordo Templi Orientis.
Q. Did you continue to have unrestricted access to the library?
A. Up to a certain time when Phyllis sequestered the [page 102] library. And after that I had no further access to it.
Q. Did she tell you where she sequestered it?
A. She did not.
Q. What was your response to that sequester?
A. I was quite shocked and at the time quite angry. I wrote a letter to her suggesting that this was a wrong thing to do, and I think I called her once or twice.
Q. I show you Plaintiffs' Exhibit 16 and ask you to identify that. Is that the letter you sent?
A. Um-hum. Yes, this is the letter I sent. This is a letter from myself to Phyllis McMurtry dated March 7, 1977. I was living in Berkeley at the time.
Q. In that letter do you state your opposition to her sequestering the library?
A. Yes, I certainly do.
Q. You make a request for its return? The very bottom paragraph.
A. Oh. Yes. Shall I read some of it?
Q. Yes. Why don't you read the bottom four lines?
A. Bottom four lines:
"You will within seven working days
return to me by mail the authorization
for which you, Helen Parsons Smith
{SIC replace entire line above with "by which you, Helen, Kris and Lon" -def}
could be {SIC sb. "have" in place of "be" -def}
named a Caliph upon my death.
If you do not do so I will issue a [page 103]
notice of verification {SIC sb. "nullification" -def -weh}
and mail a
xerox to each member."
Q. Other than sending this letter, did you do anything else?
A. There wasn't a great deal I could do, because I had no transportation, nor did I have any place to store the material.
And, in any case, the material was absent.
Q. Did you consult an attorney about this?
A. Yes. We did consult an attorney.
Q. I show you Plaintiffs' Exhibit 17 and ask you to identify that, please?
A. This is a check by me dated April 1, 1977, drawn on the Wells Fargo Bank and It's for Lawyers Referral Service of $15 and signed by myself.
Q. Was this paid to an attorney concerning this matter?
A. That was a long time ago, but I believe that was the case, because I wrote the check. I believe it was delivered by somebody else, as I recall.
MR. MacKENZIE: Your Honor, may I just speak with Mr. Mittel for a moment. This is going to begin the trial on the libel.
Do you want to use the books on this?
THE COURT: This is off the record. [page 104]
(Discussion off the record.)
MR. MITTEL: Your Honor, could we go back on the record, please?
THE COURT: Yes.
MR. MITTEL: The first problem here is our First Amended Defense, if you will, to the defamation claims.
And if Your Honor is prepared to rule on that, it will prevent any questions if you rule in my favor.
THE COURT: I am not prepared to rule on that at this time.
MR. MITTEL: Then we should just each go ahead and put his testimony in.
THE COURT: Yes.
MR. MITTEL: May I make one general objection which will continue throughout this portion of the testimony so I don't have to keep objecting on that basis.
THE COURT: Would you state your objection then for the record?
MR. MITTEL: I will. It's that the subject of the allegedly defamatory writings is a portion of a dispute of a religious nature.
And as such it's religious commentary similar [page 105] to political commentary that is protected by the First Amendment and relying on two lines of cases: New York Times versus Sullivan and the Hull Presbyterian Church cases, both of which are cited in the Joint Pretrial Statement.
Defendants suggest that the Court has no power, no jurisdiction, if you will, to award damages for any defamation which may have taken place in this particular case.
Thank you, Your Honor.
THE COURT: Your objection is noted and the Court will rule on it later.
MR. MacKENZIE: What I am intending to do, Your Honor, is simply to read the libelous material that is set forth in the original Complaint in this matter.
THE COURT: Well, is the witness going to testify about that or --
MR. MITTEL: Yes, he is.
MR. MacKENZIE: Yes, he is going to testify he heard it, and the effect it had upon him.
One of the defendants' stipulations is that this information was published by the defendant.
It's in the question of what form. If he wants to bring the publication up here or if we can use the simple quote from the Complaint. [page 106]
THE COURT: Where are your reading from? You are reading from the Complaint?
MR. MacKENZIE: I am reading from the Complaint, but the Complaint was taken out of the very books --
THE COURT: Well, is it stipulated that the material was published?
MR. MacKENZIE: Yes, it is.
MR. MITTEL: Yes, there is no question but that the material this is in the Complaint was published.
We are not stipulating that it's an accurate representation, because it's not complete, and we are going to introduce the entire books at some point.
MR. MacKENZIE: Well, if you will agree that this is accurate as taken, and you reserve the right to introduce the remainder of the book, if that is met, I will simply read off of the Complaint.
THE COURT: I don't think you need to do that unless you are going to ask Mr. McMurtry questions about it.
MR. MacKENZIE: Yes, I am, Your Honor.
THE COURT: Okay.
BY MR MacKENZIE:
Q. I would like to show you a portion of the [page 107] Complaint, the First Amended Complaint, to be accurate, and ask you a few questions about that.
Are you aware that the defendant has published certain materials about you which are stated on that sheet that I just gave you?
A. Yes, I am.
THE COURT: Now, for the record, you have given the witness a copy of page 6 --
MR. MacKENZIE: Yes, Your Honor.
THE COURT: -- of the First Amended Complaint dated March 16, 1983?
MR. MacKENZIE: That is the one.
THE COURT: Okay.
BY MR. MacKENZIE:
Q. Let me read some portions from that and ask you if they are true.
"The following individuals were at
some time associated with either A.'.A.'.
or the OTO or, if not, publicly
claimed such association. They were
either lying or had been expelled
from OTO or lost contact with A.'.A.'.
for conduct unbecoming."
Have you ever been expelled from the OTO?
A. No. [page 108]
Q. Were you ever a member of the A.'.A.'.?
A. Yes.
Q. Do you remain in contact with the A.'.A.'.?
A. Yes, I do.
Q. Have you previously lied about any of these matters?
A. Not to the best of my knowledge.
Q. Moving down the page:
"Grady McMurtry falsely passes
himself for an OTO representative,
has gained patents without ever
having had a proper warrant."
First, the word "patent." Would you tell me what that means in the OTO lexicon?
A. The word "patent" has not come up until the case in Maine and here previously that it was charters and documents of authorization.
Q. In other words, the word "patent" has not -- has the word "patent" been used by OTO?
A. It very well might have been used by the OTO, but in 40 years I never heard it being used in OTO.
Q. Fine. What's your understanding of what's intended with the word "patent"?
A. Apparently like a charter is an official document granting certain authorization in an organization. [page 109]
Q. Well, did you ever receive such a charter without ever having had a proper warrant?
A. The warrant and/or patent was included in the document of authorization I received from Aleister Crowley giving me power to act in California and as his personal representative in the United States of America.
Q. "Furthermore, it has slandered
{SIC replace above line by (flush left) "Furthermore it says 'slandered' -def}
legitimate OTO members."
Would you comment on that?
A. I do not recall having ever slandered any OTO members.
Q. Finally:
"Misappropriated Order property."
A. I would say that exactly opposite, because it says "misappropriate or acting to conceal it."
Q. Three paragraphs up from the bottom he refers to you as well as Dr. Regardie and Helen Smith as thieves.
Do you believe that is an accurate representation?
A. The material put out about thieves Dr. Regardie, McMurtry, Helen Smith is suspect. I do not recognize Dr. Regardie as being a thief.
In face, the material published by Dr. Regardie of which he is the author of much of the material. [page 110]
Q. Would you state who Dr. Regardie is?
A. Dr. Regardie is deceased now in the last year, but for many years he was the leading member of, shall we say, what's known as the Order or the Rosicrucian.
He knew the OTO, and he may have known A.'.A.'., but in any case he was not a member of Ordo Templi Orientis, but he is a very good friend and very knowledgeable. And he had known Aleister Crowley in the 1950s {SIC sb. "`1920s -pla} in Paris.
Q. Is he a chiropractor?
A. He was a chiropractor. He practiced chiropracty in his office in Los Angeles.
Q. Did he publish books?
A. Yes. He published "General Equinox." {SIC sb. "'Gems from the Equinox'" -pla -def -weh}
Q. This is okay. Just the facts.
How many books did he publish?
A. Maybe half a dozen altogether.
Q. The following paragraph states:
"Germer on his term {SIC sb. "turn" -def} tested Grady's
loyalty for decades and never
really believed him."
A. Yes. The point of this is that my relations with Mr. Germer in the 1040s were very, very cordial indeed. Basically it was -- Aleister was head of the Order.
Germer was the Grand Treasurer General. [page 111]
And I was a floating sub Inspector General {SIC} and Ninth Degree member.
However, when Mr. Germer came to California in the 1950s he had a great deal of -- he had a number of incidents in which people did not pay him back money.
So he decided the entire California Lodge was contaminated and he turned against all of us, and that included me.
Q. Finally paragraph reads:
"I do not regard McMurtry's
rights as a human. He allowed
Ms. Sascha Germer to die slowly
of malnutrition so he could get
his hands on material that he
is not qualified to handle
intellectually, morally or
spiritually."
Let's take that first part. Do you know how Sascha Germer died?
A. She died of natural causes, I believe. I believe it's recorded on the death certificate of congestive heart failure.
MR. MITTEL: Objection; foundation. Move to strike that answer.
BY MR MacKENZIE: [page 112]
Q. Tell me this, first of all: Do you know how she died?
A. She died alone. But of what she died, I believe it was --
Q. Do you know how she died, yes or no?
A. I was not there, no.
Q. Have you seen any documents as to how she died?
A. Yes. I seen her burial certificate.
Q. On the burial certificate, did it state what she died of?
A. My memory of it is that senility and congestive heart failure.
Mr. Mittel: Objection. Move to strike that answer. Best Evidence --
THE COURT: It's hearsay.
MR. MacKENZIE: I can refresh the witness' memory.
BY MR. MacKENZIE:
Q. I give you Plaintiffs' No. 119 and ask you to recognize that?
A. Yes, I have seen this before. This is a Certificate of Death of Sascha E. Germer -- Ernestine Germer. She was found dead 4-3-75.
And this is an official document by County Recorder of Calaveras County.[page 113]
As to how she died or what she died of, let me see. There is a notation in here -- all right. Yes.
The notations are she died: One, congestive heart failure;
Two, hypertensive arterioles {SIC}
Three, small contracted kidneys.
And the summary is chronic kidney failure with NSR, whatever that means.
Q. Let me ask you this now: Did she -- were you in contact with her in her years before her death?
A. No, I was not.
Q. Did you know anything about her condition?
A. I knew that she was elderly and that she was -- her -- her way of cooking food was extremely unpalatable and certainly unhealthy, because I had a lunch with her and Mr. Germer at one time.
Q. Okay. Well, is there any truth to the fact, to the claim that you allowed her to die slowly of malnutrition?
A. There is certainly no truth to it. If she had wanted my help, all she had to do was ask.
Q. The remainder of that paragraph reads:
"Furthermore, he was married to a
woman who was repeatedly accused
by Mrs. Germer of having been [page 114]
instrumental in robbing her."
Were you married to a woman who was repeatedly accused of that?
A. If you mean Phyllis Seckler, she was accused of it in a letter, and I believe by an uncle {SIC sb. "another" -pla} also.
And I have no knowledge that Mrs. Germer ever withdrew her accusations.
Q. Now, are you referring to the 1967 robbery?
A. Yes.
Q. Didn't you state earlier that the accusation had been to Miss Seckler's daughter?
A. Yes.
Q. To the best of your knowledge, was it ever addressed to Miss Seckler herself?
A. I do not recall exactly. I believe that some of the letters were addressed to Phyllis --
Q. No, the accusation.
A. I believe that came in a letter to Phyllis accusing her daughter.
Q. My question is: Do you know if Sascha ever accused Miss Seckler, the mother?
A. No, I do not.
Q. And I think you testified that you did investigate that matter?
A. Yes. [page 115]
Q. And sent a copy of your conclusions to Ms. Germer?
A. Yes, I did.
Q. When did you become aware of these quotations?
A. Sir, quotation?
Q. The libel quotations.
What were your reactions when you became aware of them?
A. I was rather shocked, but there was little I could do about it, because he was in Brazil.
Q. Can you expound on what you mean by being "shocked"?
A. Yes. I think I have a right to be human, and I have never misappropriated material from the Order.
I have done my best to conserve it at my own private expense until we could get a corporation that could fund it.
Q. Well, what would your reaction be, accused of allowing someone to starve to death?
A. I think it was ridiculous. If Mrs. Germer wanted my assistance, she knew where I was.
Q. Aside from the intellectual reaction, did it have any visual {SIC} reaction?
MR. MITTEL: Objection; leading.
THE COURT: I overrule the objection.
MR. MacKENZIE: I am sorry. [page 116]
THE COURT: Overruled.
THE WITNESS: Yes, I was shocked.
However, I was not so much angry, because it was a matter of dislike that he could believe something like that and he had no idea what was happening.
If he wanted to take care of Mrs. Germer, why didn't he come up and take care of Mrs. Germer?
MR. MacKENZIE: Thank you.
I have no further questions.
THE COURT: Before the cross-examination begins, let's take about a 10-minute recess, please.
THE WITNESS: Thank you.
(Brief recess taken.)
THE COURT: Mr. Mittel, you may begin your cross-examination of Mr. McMurtry.
MR. MITTEL: Thank you.
CROSS-EXAMINATION
BY MR. MITTEL:
Q. I am sorry to see that you are not getting on as well as you did the last time we were together.
You testified earlier that Aleister Crowley was elected?
A. Yes, that is correct.
THE COURT: Pardon me.
Mr. Mittel, would you stay back -- [page 117]
MR. MITTEL: I am sorry.
THE COURT: If you want to sit at the table and read notes, you are free to do that.
MR. MITTEL: I will stay right here.
BY MR. MITTEL:
Q. How do you know that?
In substance you testified that Aleister Crowley was elected. How do you know that?
A. That was by information from people who researched the problem that he was elected by Mr. Tranker of Germany, Mr. Regardie. {SIC sb. "Mr. Stansfield Jones -pla} of Canada and United States.
Q. You have no documents or letters --
A. I personally have no documents.
Q. Did you testify this morning that you are both the Caliph and the Frater Superior?
A. Yes.
Q. Have you ever used the title Frater Superior before?
A. Not very often. However, it';s been in "Equinox" all the time.
Q. When I took your deposition in December of 1983, you didn't say that you were the Frater Superior then?
A. I believe I did not.
Q. And when I asked you what your position was during the trial in Maine, you didn't say you were the Frater [page 118] Superior then either, did you?
A. That's correct.
Q. You testified, I think, that you were the highest ranking member and said you were a Ninth Degree member of the Ordo Templi Orientis?
A. That is correct.
Q. Are there a number of other Ninth Degree members?
A. There are other Ninth Degree members who are officials only because they are recognized by me.
Q. Let's take a look at the plaintiffs' table here. There is Mrs. Smith who, I believe, is a Ninth Degree member. Is that correct?
A. That is correct.
Q. Do you recollect when she was initiated into the Ninth Degree?
A. I do not know exactly when she was initiated into the Ninth Degree, because in the Agape Lodge in Los Angeles in the 1930s, to the best of my knowledge, no certificates were given out.
However, at that time Helen Smith was clearly accepted as a Ninth Degree. When I became Caliph and later on I offered her such position officially in the Order.
Q. So she was initiated into the ninth Degree before you were, in the 1930s? [page 119]
A. That is right. In that sense we could say '30s, '40s. I wouldn't say before I was, because mine was 1943. However, it was an unofficial thing to begin with.
Q. What about Miss Seckler; was she also initiated in Agape Lodge?
A. Yes.
Q. And into the Ninth Degree?
A. Yes. Miss Seckler, to my knowledge, had been initiated in the Ninth Degree of the Ordo Templi Orientis.
Q. That was also by whoever was the head of the Agape Lodge?
A. You mean the initiation at that time?
I do not know exactly who it was.
Q. It wasn't by you?
A. No it was not by me.
Q. This position of Caliph, that word is used nowhere in any of Aleister Crowley's writings except the letters that you have; is that correct?
A. To the best of my knowledge, that is correct.
Q. That includes the thousands of letters that he wrote to various people?
A. I have never seen any evidence presented that he wrote about the Caliph to anybody but myself. [page 120]
Q. He wrote thousands of letters, did he not?
A. He certainly wrote thousands of letters.
Q. And hundreds of books?
A. Oh, yes.
Q. Many, many poems?
A. Oh, yes.
Q. And the only mention of the word "Caliph" in any of those writings is in that letter to you; is that correct?
MR. MacKENZIE: That has been asked and answered.
THE WITNESS: Three letters to me.
And to the best -- but I have not read all of Aleister Crowley's books, not the thousands of letters he wrote, nor all the books he wrote. So I do not know if that word might be in there someplace.
But as I said, I have no knowledge that he ever wrote to anybody else except myself along that line.
BY MR. MITTEL:
Q. Let me ask you to take a look at Defendants' Exhibit 5, which is a copy of one of those Caliphate letters, but it has a typed version that I believe you prepared {NB. I typed it. -weh}. You see down here at the bottom?
A. Yes. [page 121]
Q. Does that indicate that you wrote Mr. Crowley a letter on November 6, 19 -- I believe it's '44 or '43?
Read right in the beginning of the letter.
A. Okay. This letter -- to identify it as a -- oh, yes. This letter is from Aleister Crowley to myself. It's dated November 21, '44, when I was in the Army in Belgium.
Q. Does it begin by indicating that it is responding to a letter that you wrote him on November 6?
A. That is, I believe -- would be -- yes, we had correspondence concerning the condition of the Order in California,. And so he wanted to make things official.
Q. Does it --
Would you read the first four lines of that letter, please?
A. Yes, All right. November 6. This requires mostly official, the former still being his address, although the envelope, of course, is addressed to Grady L. McMurtry.
Now, these -- so that was the first sentence.
"Yours of November 6. The {SIC sb. "This" -def} reply
most {SIC sb. "being mostly" -def} official I use the formal
staff {SIC sb. "style" -def}. As nearly always in
correspondence there is a mis- [page 122]
understanding. As the 'Caliph,' {SIC sb. "The Caliphate" in place of "As the Caliph" -def}
You must realize how closely
we must see on things exactly. {SIC replace sentence with: "You must realize that no matter how closely we may see eye-to-eye on any objective subject" -def}
I have to think on totally
different premises where the
Order is concerned."
Q. That is enough.
You had written to Mr. Crowley on November 6; is that right?
A. I do have that date in my mind. It's -- although it's stated there in the letter.
Q. Do I understand that you had also been exchanging correspondence with him prior to that time?
A. Let me see.
That was November '44?
Q. Yes, sir.
A. Yes. Oh, yes. I had been in correspondence with Mr. Crowley when I was in the States.
And then when I was in England, I wrote to him from my various Army bases.
And then when I was in France and Belgium and Germany, I kept writing to him.
Q. In those letters you had discussed with him the situation at Agape Lodge?
A. We tried to. It was very complicated, but I tried [page 123] to discuss it as best I could.
Q. Tell me what the problem was at Agape Lodge.
A. Basically the problem at Agape Lodge is that Wilfred Smith had a residence on Winona Boulevard in Hollywood.
However, in the course of events the property was purchased by Mr. Jack Parsons on South Orange Grove in Pasadena, quite a substantial property.
The Agape Lodge was moved from the Winona address and moved to the Agape Lodge address, whereupon Mr. Parsons became the Master of the Agape Lodge.
And at that time initiations stopped and they stopped doing the mass.
There was a large amount of curiosity why these things had happened and writing about what we though was going on.
And that was basically the substance of it, that Mr. Parsons had taken over the Agape Lodge and it had basically ceased to function.
Q. So you suggested to Mr. Crowley or had Mr. Crowley suggested to you that something be done about that.
A. He wasn't suggesting to me much about doing something about that when I was in the Army during the War. [page 124]
When that came up, I was still in the Army in 1945, and the War was over. And when I visited him for a week in Hastings, this was on of the main topics of our conversation.
During our conversation one afternoon, he said, "I may be the world's greatest magician, but I have to have some basis to go on."
Whereupon, I said, "Since I know these people and you know me, when I get home to California I will take a look at the situation and write you a report," unquote.
Q. And you had also been writing to him before about that very same problem; is that right?
A. We had discussed the organizational problems at Agape Lodge on a number of occasions.
Q. By "discussed," you mean in writing?
A. That was one the the things we corresponded about.
Q. All right. in your letters to him, you had suggested to him that you be appointed some type of position to overlook or assist with the problems at Agape Lodge?
A. I suggested the situation become formalized, and he responded by sending me a formal authorization.
Q. One of the things you suggested was that you be appointed Caliph or something along that line? [page 125]
A. No, I never suggested that. The Caliph letters where far behind at that point.
Q. Let's back up. Let's go back to the letter you were just looking at.
A. Yes.
Q. That was dated sometime in November of 1944?
A. Yes, that is right.
Q. Mr. Crowley, in the beginning of that letter, refers to a letter that you had written to him on November 6; right? Remember that?
A. Yes.
Q. And he says: "Concerning the Caliph," right after he mentions your letter of November 6.
A. All right.
Q. Didn't he say that because you had written to him about the Caliphate on November 6?
A. All right.
Q. Didn't he say that because you had written to him about the Caliphate on November 6?
A. Yes. That came up when I was still able -- after the drive on the Siene, he {SIC sb. "we" -weh} wound up at the Cathedral town of Scharts, S-c-h-a-r-t-s {SIC}. That was in August. And I wrote to Mr. -- Mr. Crowley had mentioned Caliphate, and I wrote to him and asked for clarification.
Q. Now, you didn't produce either of the letters that you just mentioned when we asked you to do that before this trial. [page 126]
Have you been unable to find them?
A. I beg your pardon?
Q. We don't have either of those letters. We don't have the letter that you wrote to him from Scharts {SIC}.
A. I am sorry. I cannot locate that file at the present time. I have looked for it, and I cannot find it.
Q. All right. Was that the letter -- the letter that you wrote from Scharts {SIC} -- the first letter in which the Caliph was discussed?
A. It wasn't from Scharts {SIC} so much as it was Crowley who wrote to me and mentioned the Caliphate, and I wrote back requesting clarification.
And he wrote back then on September 28, '44 with further clarification.
And then November 1944 he explained what he meant by Caliph and what he expected from it.
Q. Let me go back to something else for a minute.
We were talking about other members of the Ninth Degree Lectures {SIC ?}. Is it possible that besides the two women who are plaintiffs with you that there are other Ninth Degree members still around from Agape Lodge.
A. You say "possible," but I do not believe it's probable because, to the best of my knowledge, we knew [page 127] all of the elderly ongoing members of Agape Lodge.
And to the best of our knowledge they are all dead except Helen, Phyllis and myself, so far as I know.
Q. There might be some others; is that correct?
A. There might be anything.
Q. If they were initiated by Aleister Crowley they, like you, would be Ninth Degree members?
A. If they could produce documents to prove it.
Q. If Mr. Germer initiated anybody in the Ninth Degree, they would be a Ninth Degree member like yourself?
A. That does not follow.
Q. I beg your pardon?
A. That does not follow.
Q. It doesn't follow because of what?
A. Because Germer was never the Outer Head of the Order. He was only de facto.
Q. You do not need to be Outer Head of the Order in order to initiate somebody in the Ninth Degree.
A. That is correct. You don't need to be.
Q. You only have to be Ninth Degree?
A. Ninth Degree or Third.
Q. And Mr. Germer was certainly that?
A. Yes.
Q. So anybody initiated would be validly initiated? [page 128]
A. During his lifetime.
Q. So that, say, if Mr. Motta was initiated by Mr. Germer into the Ninth Degree, he would, like you, be a member of the Ninth Degree?
A. If he were initiated, that would be true, during Mr. Germer's lifetime since he was only de facto.
q. I think you -- are you ready, sir?
A. Yes.
Q. I think you also testified that during the 1950s Mr. Germer was unhappy with you.
A. That is correct, he was.
Q. And I think you said that he was unhappy because you were pushing for new initiations; is that right?
A. That is correct.
And also he felt I was slow in repaying the debt for a car loan, which he had given me.
Q. Were there any other reasons that you can think of?
A. Yes. When Mr. Germer came to the West Coast in the 1950s, I was at that time in 1950, '53 in Korea for the Korean War. And I was in Berkeley, a graduate student at the University of California.
What happened was he came out to the Los Angeles-Barstow area, had a number of very unhappy experiences with OTO members, and he simply wrote off the members of the Agape Lodge as being untrustworthy, [page 129] disloyal and so forth. And, of course, that included me.
Q. Did you pay any dues?
A. There were no dues being collected by Mr. Germer.
Q. Did you offer to pay any dues?
A. I didn't offer, because he did not ask.
Q. You spoke something about the letters that Mr. Crowley had written to Frederic Mellinger.
Do you remember that?
A. When was that, sir?
Q. This morning.
A. Yes, I recall.
Q. Do you recall whether the terminology he used in those letters explaining his potential future role is similar to that used to describe your future role?
A. It was and it was not.
On the one hand, when he spoke of Mr. Mellinger being a possible successor that was equivalent to my Caliphate letters.
On the other hand, he never gave him any Caliphate letters, nor did he ever give him any documents of authorization.
So the letters themselves were favorable to Mellinger, but they never provided any authorization to take effect. [page 130]
Q. Let me show you Defendants Exhibit 16 --
THE COURT: 60?
MR. MITTEL: 16.
THE WITNESS: Does it have something to do with chronology?
BY MR. MITTEL:
Q. Would you read the material on page 2 that I have highlighted for you, starting with the first full paragraph on that page?
A. Yes. Shall I identify it for the court reporter?
Q. We have done that.
A. Quote:
"I am very anxious indeed that you
should keep in close touch with me
only because I think it quite
possible that after The Saturnus
and I have moved on into
the next stage, you may" --
underline "may" --"find yourself saddled
with the whole responsibility of
carrying on with the Order."
Q. What is the address and line on the letter?
A. "My beloved Son."
Q. Did Mr. Crowley ever refer to you as his "beloved son"? [page 131]
A. No, he did not.
He referred to me, however -- he wrote to me as "Louis," because in his mind Louis had something to do with the King of France.
I never did get that straightened out.
Q. Are you familiar with an individual by the name of Louis Umfreville?
A. Louis Umfreville Wilkinson.
Q. Were was he from?
A. He was from London, England. He was Dr. Wilkinson, and he wrote under the literary name of Louis Marlow, M-a-r-l-o-w, L-o-u-i-s.
Q. Do you know whether Mr. Crowley assigned Mr. Mellinger any position in the Ordo Templi Orientis?
A. No, I do not.
Q. Do you know whether Mr. Germer did?
A. No, I don't.
Q. So you don't know whether Mr. Germer instructed Mr. Mellinger to go to Switzerland and review the operations of the Swiss Branch of the Ordo Templi Orientis?
A. No, I have no cognizance of that.
Q. Do you have any documentary evidence, any letters, anything like the "Blue Equinox" that indicates that the Constitution that is in the "Blue Equinox" is in any way amended or changed by the 1917 Constitution that you [page 132] spoke of this morning?
A. The 1919 Constitution published in the"Blue Equinox" is an abstract of the 1917 Constitution. The most radical aspect of it was that an OHO can change the Constitution by edict.
Q. In the 1919 Constitution is there anything that makes reference to the 1917 Constitution?
A. I do not believe so. I never seen it myself.
Q. Here is the "Blue Equinox;" is that right?
A. Correct>
Q. Have you read this book?
MR. MacKENZIE: Objection. I don't believe that is the authentic copy.
BY MR. MITTEL:
A. Are you familiar with this work?
THE COURT: Is there a dispute?
MR MacKENZIE: Yes, sir.
If I may address that: It's my understanding that this is a later edition which contains differences from the original one that was published in 1919.
THE WITNESS: Yes, that is correct.
MR. MacKENZIE: I oppose its authenticity.
THE COURT: Well, would you identify for the record what edition of the book that is?
MR. MITTEL: This, Your Honor, that is, I [page 133] am holding in my hand is the 1974 edition published by Samuel Weiser, Incorporated, of the "Blue Equinox"' first published, I believe, in 1929 or maybe even earlier by someone in Detroit, the name of which escapes me.
BY MR. MITTEL:
Q. Mr. McMurtry, are you familiar with both editions?
A. I am very familiar with the first edition which was published in 1919 with Aleister Crowley.
I am familiar with this edition. And when it came out I reviewed it.
My memory will not comprehend everything that is in it, of course, but I will tell you this, that we were quite surprised to discover that when Mr. Weiser published this edition, there is a section in there involving publications.
Mr. Weiser went through and removed the name and address of the publisher of each one of these. And there may very well have been other changes, but quite obviously some changes have been made.
Q. Either in this edition or in the 1919 edition is there any reference to the 1919 {SIC sb. "1917" -pla} Constitution, to which you have testified?
A. I have no knowledge of it being in either of those editions. I have never seen it before.
Recently we acquired a quoted material in [page 134] which this was about -- about two or three months ago we became aware of the 1917 Constitution.
Q. Do you know if Mr. Wasserman worked on the publication of the 1974 edition?
A. I do not know that personally, but -- no.
Q. When did you finish your Master's Degree?
A. 1954.
Q. What did you do after that?
A. I continued as a graduate student at the University of California to the academic year of '55, '56, whereupon I was given the position of Administration Analyst with President Sproul, at which time I worked the position from that year 1956, '57 -- at which time I left the University, worked around Berkeley for awhile, and then took a job with the Department of Labor in Sacramento as a management analyst.
Q. So do I understand that you were steadily employed from 1956 until when you went no Washington, D.C.
A. I was steadily employed, yes.
Q. Let me show you Plaintiffs' Exhibit 1 about which you testified this morning.
What is the date on that letter, please?
A. November 10, 1959.
Q. So at that time you were working; is that right?
A. In 1959? [page 135]
Q. Yes.
A. I went to Sacramento in 1957. I was working there in 1959; that is correct.
Q. When did you move to Washington, D.C.?
A. In 1961.
Q. What OTO activities did you undertake while you were in Washington, D.C.?
A. Absolutely none, because there were no other OTO members except, of course, keeping in correspondence for awhile with the people on the West Coast.
Q. How long did you keep in contact with them?
A. At least until 1962. We have letters until then. After that, I don't recall much in the line of contact.
Q. So there was no contact from, say, sometime in 1962 until 1969 when you got a letter from Phyllis Seckler?
MR. MacKENZIE: Objection. I think that is mischaracterizing his testimony.
He said at least 1962. He does not remember beyond that.
THE WITNESS: Yes. I don't remember beyond that. I don't have any documentation. It's just a -- people stopped writing, and I had work to do.
BY MR. MITTEL:
Q. The first contact you did have with anybody was when Miss Seckler wrote and told you what? [page 136]
A. Miss Seckler wrote me in '68 and informed me of the burglary of Crowley's library at West Point. And that is the first contact I had for some time.
Q. In fact, in that letter, didn't she wonder if perhaps you had committed the burglary?
A. Yes. She asked me: Did you do it? So I took a look at my finances. I said, "This is impossible." What is going on?
Q. You didn't have anything to do with the burglary in 1967?
A. Absolutely nothing. I was on the East Coast.
Q. Soon thereafter, that is, after 1967 or '68, you came back to California; is that right?
A. I came back to California in 1969.
Q. Did you say that you continued an investigation of this theft that had taken place at Mrs. Germer's house?
A. I did.
Q. Did you ever speak with Mrs. Germer?
A. I did not speak with Mrs. Germer from 1961. And I certainly didn't talk to her after I came back to California.
Q. So you didn't ask her any questions about the theft?
A. I absolutely did not.
Q. Did you talk with any of her neighbors? [page 137]
A. We talked with the constable in the little town of West Point, but we did not interview her neighbors, no.
Q. Now, you say that after Mr. Germer's death, as far as you knew, there was no Ordo
Templi Orientis activity in the United States in terms of initiations or lodge meetings or anything of the like?
A. That was Mr. Germer --
Q. Yes.
A. Mr Germer died in 1962, and I was in Washington, D.C. I was not informed until 1968. So there was nothing I could do.
Q. You do not know whether there were, say lodge meetings going on in England during that period, do you?
A. I have been in the Order for 40 years. If there were members in England, I would know it. We would have been in correspondence.
Q. You didn't know about Mr. Germer's death until six years after it happened?
A. That is correct. More like seven.
Q. Why should we think you should know what was going on in England?
A. During that time?
Q. Yes, sir. [page 138]
A. I had no reason to suppose that anybody was holding activities in England a that time. They would not be in correspondence from '68 to '69
Q. So if somebody was doing it, you would have known about it?
A. I certainly would not have known about it at that time.
Q. Likewise, you wouldn't have known if there was any activities in, say, Switzerland; is that right?
A. We -- I had heard of Mr. Metzger in Switzerland, but that was about all at the time.
Q. You didn't know whether there was any activities in Australia.
Q. And you didn't know that there was any activity in Brazil?
A. Well, I -- let me see. What year was this?
Sometime I became acquainted with the -- that Mr. Motta was in Brazil.
Q. We are talking about during the 1960s.
A. I have no idea.
Q. So you testimony this morning that there was no activity after Mr. Germer's death is limited, at least as far as you know, to the United States? [page 139]
A. That is correct. In the official activity we recognized.
Q. In fact, you might not even be correct about that, because you were out of contact with everybody in California during that period; is that right?
A. There was a hiatus of about six to seven years.
Q. You testified about the College of Thelema. Can you describe that for us?
THE COURT: What?
MR. MITTEL: The College of Thelema.
THE WITNESS: Yes. This is an organization that was created by Phyllis and myself in Dublin. It's an organization to teach and education people who would like to get involved with Aleister Crowley's writings and teachings.
It has a formal organization. It has a publication called "In the Continuum", C-o-n-t-i-n-u-u-m. It has classes and it has seminars.
And at least once a year, it was my understanding, they have a big meeting in Oroville.
BY MR. MITTEL:
Q. Have you ever taught a class for the College of Thelema?
A. I have not myself, because I departed Dublin in 1974, but I did use my talents as a management analyst [page 140] to set up the organization formally.
Q. Do you know that type of classes they teach?
A. From the literature I received, it's classes involving Aleister Crowley's writings and, of course, things concerning the history of the Order.
Q. Have you ever attended one of those classes?
A. No, I have not.
Q. Are there any other documents besides the 1919 Constitution which provided governing rules for the Ordo Templi Orientis?
A. Yes. In the "Blue Equinox" there is some other material in which Crowley -- for example, he has a, long list of duties and responsibilities and financial obligations which is not in the Constitution.
In fact, I believe he mentions it in two letters, other than the information of the Constitution, all three of them, including the "Equinox," to my memory, sir.
Q. Is all of the governing law in the "Blue Equinox" except what is in the rituals themselves?
A. To the best of my knowledge, that is correct. [page 141]
Q. Does it -- do any of those materials say anything at all about a de facto OHO?
A. No, not that I know of.
Q. Do any of those materials say anything about the authorizations being used by a de facto OHO expiring?
A. I do not believe it does, because it doesn't discuss a de facto OHO.
MR. MITTEL: You Honor, if I understand correctly, we were going to stop at 1:00 or just about then.
THE COURT: Yes.
MR. MITTEL: This is a convenient place for me.
THE COURT: Fine.
Mr. McMurtry, you may step down until tomorrow.
We will be in adjournment, ladies and gentlemen, until 9:30 tomorrow morning.
Tomorrow's schedule will be 9:30 until roughly 4:30 with an appropriate break for the lunch hour.
And then on Wednesday and Thursday we will begin at 8:00 in the morning and again go until 1:00 in the afternoon.
MR. MITTEL: if Your Honor please, I will [page 142] be happy to go through 5:00 on Wednesday, Thursday --
THE COURT: Let's see where we are.
MR. MITTEL: -- if need be.
THE COURT: Let's see where we are. If we need extra time on Wednesday and Thursday to complete the week we can do that. But the regular court day will be 8:00 to 1:00 without lunch break unless we -- well, as I say, we can reset the schedule when we see how our time is progressing.
We will adjourn now until 9:30 tomorrow morning.
(Court adjourned at 1:00 p.m.)
[page 143] --- this page is used in the Transcript for the certification by the Court Reporter. In as much as this is not a legally certifiable electronic document, the page shall remain blank to signify that this particular version is for research and not for legal representations.
---- Transcribed from the record with notes by William E. Heidrick, Grand Treasurer General, Ordo Templi Orientis.
[page 145]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE CHARLES A. LEGGE, JUDGE
Grady McMurtry, William E. Heidrick, Phyllis Seckler, Helen Parsons Smith, William Breeze, Francis I. Regardie, James Wasserman, and Kenneth Anger, individuals, Ordo Templi Orientis, a corporation, and Thelema Publications, a business entity,
Plaintiffs,
vs.
Society Ordo Templi Orientis, a corporation, Thelema Publishing Company, a corporation, Marcelo Ramos Motta, an individual, and Does I through X, inclusive,
Defendants.
CIVIL NO. C-83-5434
VOLUME II
PAGES 145 - 249
Morning Session
REPORTER'S TRANSCRIPT OF PROCEEDINGS OF COURT TRIAL
Tuesday, May 14, 1985
450 Golden Gate Avenue
San Francisco, CAlifornia 94102
REPORTED BY:
Nancy J. Palmer
[page 146]
APPEARANCES:
FOR THE PLAINTIFFS:
Stuart I. MacKenzie, Esquire
80 Swan Way, Suite 301
Oakland, California 94621
FOR THE DEFENDANTS:
Law Offices of Mittel & Hefferan
By: Robert Edmon Mittel, Esquire
5 Milk St.
P.O.Box 427
Portland, Maine 04112
[page 147]
INDEX
VOLUME II
Examinations:
Witness: Direct Cross Redirect Recross
Grady Louis McMurtry
Resumed: 149
Phyllis Seckler 194 250 308
Helen Parsons Smith 317 346 361 367
Exhibits: For_Ident. In_Evidence
Defendants'
68-B,C Two documents dated 252 255
April 26, 1977
3,83,86 Purchase orders and 339
letters re books
[page 148]
Tuesday, May 14, 1985 9:30 o'clock a.m.
PROCEEDINGS
SECOND DAY
THE CLERK: Civil Action No. 83-5434, McMurtry versus Society Ordo Templi Orientis.
THE COURT: Good morning.
Mr. Mittel, are you ready to resume your cross-examination?
MR. MITTEL: Yes, I am.
THE COURT: Mr. McMurtry, would you take the witness stand again, please?
GRADY LOUIS McMURTRY,
having been previously duly sworn, was examined and testified further as hereinafter set forth.
THE COURT: Mr. McMurtry, you realize that you are still under oath?
THE WITNESS: Yes.
THE COURT: If you need a recess of any kind, please let us know.
THE WITNESS: Thank you.
THE COURT: All right, Mr. Mittel.
MR. MITTEL: Thank you, Your Honor.
Good morning again, Mr. McMurtry. [page 149]
THE WITNESS: Sir.
MR. MITTEL: Good morning, Your Honor.
CROSS-EXAMINATION (Resumed)
BY MR. MITTEL:
Q. I think yesterday you testified at some point that you moved out of the house in which you were living in Dublin and moved to Berkeley. Can you tell us why you did that, please?
A. Yes. Phyllis asked me to leave.
Q. And why did you she do that?
A. Well, I don't know.
Q. You didn't talk with her about it?
A. Oh, yes. There was some question about finances, but this had been going on over for years, whatever, prior to 1974.
Q. So it is your testimony that the reason she asked you to leave was because you were not making a financial contribution to the household?
A. That was her opinion, yes.
Q. And were there any other reasons?
A. I can't think of any.
Q. You're certain about that?
A. Well, I can't think of any just offhand. That was the only thing that caused us to have disturbing relations. [page 150]
Q. Now, was it before or after you left that -- left Dublin, that is -- that you and Miss Seckler and some other people had gone up to Calaveras County and gotten the library?
A. Okay. That was a very long question. Can you try that again?
Q. Did you leave Mrs. Seckler's house before or after you and the other members of the Ordo Templi Orientis --
A. Oh, yes, I left in 1974. And we didn't go up there until 1976.
Q. So you were not living in Dublin when the library was brought back from Calaveras County?
A. I was not living there. I was visiting, however, on weekends and sometimes on week nights.
Q. Could you tell me again what it was that you removed physically from the contents of the library and took from Dublin back to your home in Berkeley?
A. Correction, Sir. I did not remove anything from the library. The library was under my custody according to the Superior Court Order of Calaveras County. I did remove them from the house. But the library could have been in Berkeley if I would have had a place to store it.
I didn't remove from the house --
Q. Let me ask you something else first: Have you [page 151] always taken the position, Mr. McMurtry?
A. Certainly. That is what the Superior Court Order said.
Q. You've never indicated that it was yours personally?
A. No, not mine personally. Well, I may have indicated that in certain moments of distraction. But in any case it is not my personal property.
It is only in my custody as, say, the representative of the Order.
Q. And you certainly wouldn't have stated that it was yours if you were think and and writing about it?
A. No-- I -- that's -- if I did, it was certainly a misunderstanding or I was in a hurry.
Q. Now, let's go back. And tell me now, if you will, what it was that you took to Berkeley with you?
A. Yes. I took a copy of the Liber Aleph that Mr. Motta printed in Brazil.
I took two large vinyl records that had the Enochian -- that's spelled E-n-o-c-h-i-a-n -- Enochian call on them.
I took a copy of the latest edition of the I-Ching, I-Ching, by Legge, L-e-g-g-e.
There was novel called "The High Place" by James Daniel Gunther, which I liked, which I took. [page 152]
And many other -- probably several other things of addenda.
Oh, yes, there were some menus that Aleister Crowley had used at one time.
And that's about all that I can think of at the moment.
Q. Now, are you certain that's all you took?
A. No. I said that's all I can think of at the moment.
Q. Is it possible, for instance, that you also took some correspondence between Mr. Motta and Mr. Germer?
A. Thank you for correction my memory. I think that was --
MR. MacKENZIE: Your Honor, I am going to object at this time, because I think what we're talking about here is the foundation for the defendant's invasion of privacy claim which, I believe, is barred by the Statute of Limitations.
THE COURT: Well, I am not prepared to rule on that at the moment. And it seems to me the fundamental question of whether the witness took correspondence between Mr. Germer and Mr. Motta is -- runs throughout the case.
It seems to be in relationship to other people throughout the case. So I am not prepared to [page 153] rule on it if it's limited to one issue.
BY MR. MITTEL:
Q. Mr. McMurtry, can you describe for me what the menus looked like?
A. Yes. They were small, oblong cards. Some of them had Aleister Crowley's imprint, that is, a big seven-point star on them. Most of them did not -- and they were printed in gold. They said -- gold on white. And then on these Aleister Crowley had written his menu for the cafe he was attending at the time.
Q. For what?
A. For the cafe he was attending at the time.
Q. Now, Mr. McMurtry, do you remember my taking your deposition out here in San Francisco about a year and a half ago?
A. Yes, I do.
Q. Do you remember my asking you what you had taken from the library or taken from your house?
A. I remember the question, yes.
Q. Let me read you your answer, and then another question and then another answer.
A. Yes.
Q. You say at page 107:
"I extracted the letters themselves."
You were talking about the letters between Mr. Motta and [page 154] Mr. Germer.
And then I said:
"What else did you take?"
"I took a few books and an original
copy of Liber Aleph, some quoted
material, what I thought was
interesting."
"Did anybody else take anything
else out of the library?
You say "Except for Phyllis Seckler, I
don't think so."
Now, you didn't mention the menus?
A. No.
Q. And that is because you actually didn't take the menus in 1976?
A. Oh, I took them. I just didn't remember. It's quite awhile ago from '76 till now, and what do the menus have to do with the case?
Q. You are absolutely certain that you didn't take the menus in 1976?
A. I said I did take them.
Q. You're absolutely certain that you did?
A. I don't know if it was in '76 or not, but I certainly took them.
Q. Well, could it have been some other time? [page 155]
A. I doubt it, but it is possible. I was visiting out there for a considerable period of time.
Q. Well, how many times -- strike the question, please.
Did at some point Mrs. Seckler take the library from her house in Dublin and put it into a commercial storage operation, Public Storage?
A. She said she did, and I believe her.
Q. All right. And when did that happen?
A. I'm not exactly sure of the date, because I did not take the library myself to sequester, so I don't know what dates she took it.
Q. Did you visit with her before that happened and after you had taken the material you've described to your house in Berkeley?
A. Before and after what?
Q. Did you happen to visit with her in Dublin after you took the material that you've mentioned, the Liber Aleph, the I-Ching?
A. My memory of that was our relations continued amiable for quite awhile after that.
Q. Are you certain about that?
A. Up to a point when she sequestered the library and changed her mind about leaving it in her house, other than that our relations became acidulent. [page 156]
Q. But prior to that time she had not, for instance, written to you and told you that you were not a good person, that you were failing in responsibilities --
A. Oh, she did all that and a lot more.
Q. And that was before --
A. I don't exactly -- well, no. That was before what, '76?
Q. That was before she sequestered the library?
A. I would presume it was the same time that she sequestered the library.
But I don't -- I don't recall -- I don't know when the library was sequestered. How can I -- I don't know what year it was sequestered.
Q. Let me suggest to you that Miss Seckler took the library was sometime in March of '77; is that right?
A. It's entirely possible.
Q. All right. Do you recollect going to her house between, say, July of 1976 and March of 1977?
A. Not offhand, but I might very well have done so.
Q. Do you have any recollection of your removing those menus, taking the menus, if you will, from the library during that interval of time?
A. No. I took them at some time, but I don't remember whether it was then or earlier.
Q. Now, your are certain you didn't take them sometime [page 157] after the library had been sequestered?
A. Definitely not, because I couldn't get to the library after it was sequestered since she put it in a storage box and did not tell me where that storage box was.
Q. How did you feel when you found out that she had put it in the storage box?
A. The library?
Q. Yes, sir.
A. Shock and considerable anger.
Q. And why was that?
A. Well, because according to the Superior Court Order I was to be in charge legally as representative of the Order of the library. She had no right to do so. And it disrupted all of the plans and schemes about the Order.
Q. And by her sequestering it, was that something akin to her almost stealing it from the Order?
A. Well, it depends upon how you define the words "steal" and "sequester."
So far as I was concerned, Phyllis Seckler is an active members of the Order of longstanding. She was a noted woman living in a house all by herself.
We know of three instances in which certain people have used violence against other women to obtain [page 158] coded material. And so she became frightened.
Q. She became what?
A. Frightened.
Q. Are you suggesting that she was frightened and that's why she hid the library?
A. Yes. I believe that's why she took the library, because she couldn't trust me at the time and somehow or other she got it in her head that I was going to come out and do something physical, but it really was impossible because I didn't have a car and no place to store it.
In any case, I wouldn't be able to find it, so I wrote to her and I called. And that was the end of it more or less.
Q. But you said you were angry at her?
A. Yes, I was.
Q. if she was frightened, wouldn't you have been understanding and caring?
A. How could I? She was in Dublin; I was in Berkeley.
Q. The reason you were angry at her and shocked about it was because you knew that really she was sequestering that library so that you couldn't get at it; isn't that true?
A. Oh, basically.
Q. And so since you were entitled or at least [page 159] according to the Court Order you were entitled to possess the library for the benefit of the Order --
A. Yes.
Q. -- she was preventing you from doing that?
A. That is correct.
Q. And she was violating that Court Order?
A. That is correct.
Q. So, in essence, she was a thief?
A. I don't think she was a thief. I think she was a frightened woman who put away material for which she was very concerned in a place where she thought it couldn't be burglarized.
Q. And you told other people what she had done, didn't you?
A. Did I, or did she?
Q. You did.
A. Oh, yes.
Q. You told them that she had taken this library in violation of the Court Order.
A. Oh, yes.
Q. And in violation of your rights and duties as your position in the Ordo Templi Orientis?
A. As it concerns the library, yes.
Q. Mr. McMurtry, you're not the Outer Head of the Ordo Templi Orientis, are you? [page 160]
A. Not official elected as such, no. There is no Outer Head of the Order at this time.
Q. Have you ever said that being the Caliph is the same as being the Outer Head of the Ordo Templi Orientis?
A. According to the "Blue Equinox", the Frater Superior and the OHO are equivalent and I am certainly the Frater Superior of the Ordo Templi Orientis.
Q. When did you become the Frater Superior of the Ordo Templi Orientis?
A. Yesterday -- when I became Caliph.
Q. Well, how is it that in all the previous times I've asked you questions about what your position in the Ordo Templi Orientis is you never suggested that you were the Frater Superior?
A. I didn't think of it at the time.
Q. You just thought of it yesterday.
A. No, I -- it's been quite awhile since the Maine Court, and I've had occasion to review the literature and material and refreshed my memory on that.
Q. Now, are you saying that the Frater Superior and the OHO are the same?
A. According to the "Blue Equinox" they are equivalent, yes.
Q. And you are saying that being the Caliph is the {page 161] same as being the Frater Superior?
A. That is correct.
Q. Now, in fact, have you ever claimed to be the Head of the Order?
A. I have never claimed it myself. There have been occasions when people would give me a document like the Certificate of Initiation in order to be Tenth Degree or OHO, I would sign it on the basis that that was their view. But I've never officially taken it to use it as the OHO, no.
Q. Does it suggest anywhere in the "Blue Equinox" that the Caliph and the OHO are the same person?
A. No. The reason for that is because on the -- in fact, Aleister Crowley had not developed the concept of Caliph at the time he wrote the "Blue Equinox" in 1919.
However, -- if I may continue --
Q. Sure.
A. -- however, in the Constitution of 1917, the Outer Head of the order was given the right to change the Constitution by edict, so that when Crowley wrote to me about the Caliph, this is what he was doing, was simply changing the constitution to include Caliph in the Order and Frater Superior.
Q. Anywhere in that letter to you where he mentions the word"Caliph"? Does he say anything about changing [page 162] the Constitution?
A. No. This is something I'm reading into it, because he was right.
THE REPORTER: May I ask you to slow down just a little, --
THE WITNESS: I'll try to.
THE REPORTER: -- because it's very unfamiliar to me.
BY MR. MITTEL:
Q. How many letters are there that your received from Mr. Crowley that mentioned the word "Caliph"?
A. Three.
Q. And which letters are those?
A. There's one for August of 1944, one for September of 1944 and one of November of 1944.
Q. NOw, there have been occasions, haven't there, when other individuals have said that you were the OHO of the Ordo Templi Orientis?
A. There have been occasions when other people have noticed that.
Q. And, in fact, on some of those occasions you've approved of what they said, haven't you?
A. I approved of what they said.
Q. And, in fact, on some of those occasions you've adopted their position in writing, haven't you? [page 163]
A. I don't recall having done so.
Q. Do you remember when James Wasserman came to California in 1976?
A. Yes.
Q. And do you remember that he came out there as Mr. Motta's representative?
A. Yes.
Q. And do you remember that at some point you met with him and he decided that he would no longer be Mr. Motta's representative?
A. I do not recall that. He -- in fact, I recall it as the opposite. He was Mr. Motta's representative. He took the Minerval, M-i-n-e-r-v-a, initiation in Ordo Templi Orientis, wrote a very beautiful letter to Mr. Motta.
And I still dealt with Mr. Motta on the A.'.A.'. level. And he, as far as I know, was quite disappointed when Mr. Motta wrote back saying that he wouldn't have anything to do with my offer of peace.
Q. Is it you testimony that Mr. Wasserman did not -- abandoned his representation of Mr. Motta and instead changed his allegiance to you?
A. I didn't say anything at all about representation.
Q. Well, did Mr. Wasserman abandon his representation of Mr. Motta? [page 164]
A. You'll have to ask Mr. Wasserman that, because I do not know.
Q. Well if, for instance, Miss Seckler said that he did, that he changed sides, would she be telling the truth?
A. I do not know.
Q. So you have no opinion about whether Mr. Wasserman changed sides?
A. I just got through saying I do have an opinion.
Q. And what --
A. And my opinion was the Mr. Wasserman did not change his position with Mr. Motta at the time he took his initiation with the OTO. He thought it was perfectly compatible with A.'.A.'.
And he wrote to -- in fact, the letter of peace that I wrote to Mr. Motta that included the letter from Mr. Wasserman to Mr. Motta, using particular official A.'.A.'. insignia and so forth.
And I think that Mr. Mot -- Mr. Wasserman was not so much getting rid of Mr. Motta as Mr. Motta was abandoning him.
Q. Did you assist Mr. Wasserman in writing this letter to Mr. Motta?
A. Not at all.
Q. Did you review his letter? [page 165]
A. Oh, I read it, of course.
Q. And it was included in the letter that you sent to Mr. Motta?
A. Oh, yes. Same envelope.
Q. There weren't any errors in Mr. Wasserman's letter, were there?
A. How would I know?
Q. Well, you read it.
A. How long ago?
Q. I'm sorry. I asked you a moment ago if you included Mr. Wasserman's letter in the same envelope that you sent to Mr. Motta.
A. In the same envelope, yes.
Q. And I asked you if you read it and you said, "Yes."
A. Yes.
Q. And I believe I asked you if you approved of it, and you said, "Yes."
A. Yes.
Q. Now, I'm asking you when you approved of it, I assume you didn't see any errors in it?
A. It was Mr. Wasserman's letter. If he had errors in it, that was up to him.
Q. Would you have knowingly sent a letter that was false?
A. It was not my letter. [page 166]
Q. Would you have approved it if it was false?
A. Certainly not.
Q. Let me now show you Defendant's Exhibit 63, and ask you if that's the letter that Mr. Wasserman wrote that was included in your letter?
A. Yes, it's signed "L," and it is my opinion that was the exact letter, yes.
Q. And let me show you Defendant's Exhibit 65 and ask you if that's the letter that you wrote to Mr. Motta, which which you included Mr. Wasserman's letter?
A. Yes, it certainly is.
Q. Now, I'd like you to read to the Court the lines on page 2 of Mr. Wasserman's letter that I have marked with a yellow highlighter.
A. Very well.
This is a letter from --
THE COURT: Which exhibit are you reading from?
MR. MITTEL: 63, Your Honor, page 2.
THE WITNESS: I identified --
MR. MITTEL: This document is a letter form --
THE COURT: Hold it one minute.
THE WITNESS: Certainly, sir.
THE COURT: What I have marked as Exhibit [page 167] 3 seems to be --
MR. MITTEL: 63. You're looking at the right letter, Your Honor. That's it right there (indicating).
MR MacKENZIE: I'm missing page 2 in my copy.
THE COURT: It's a rather strange copy.
May I see your letter?
MR. MITTEL: This is my copy.
THE COURT: You say the second page of -- what I have of 63 is not the same.
MR. MITTEL: I will get a replacement copy for you.
THE WITNESS: Yes, the next page.
Well, what about this page?
BY MR. MITTEL:
Q. Could you now please read the portions that I've noted to you on page 2 of Defendant's Exhibit 63?
MR. MacKENZIE: Excuse me. Before you do that, do you have another copy of the exhibit?
THE WITNESS: This is a letter from James Wasserman to Mr. Motta. It is dated 7-18-76.
The portion you want me to read, I believe, is on the second page.
This is Mr. Wasserman speaking, quote: [page 168]
"Crowley's words to Grady in the
Caliphate letters" -- and the Caliphate is spelled C-a-l-i-p-h-a-t-e -- "Crowley's words
to Grady in the Caliphate letters
establish that in essence the
office of Caliphate is equivalent
to the office of OHO. As you will
see when you read the letters
this is self-evident.
"I recognized last night when I
wrote in my motel room with a clear-
sighted perception that Grady is
the Outer Head of the Order," end quotes.
BY MR. MITTEL:
Q. Now, Mr. McMurtry, there have been occasions, have there not, when you have said you were not Caliph, not the Caliph?
A. Yes. Yes, sir.
I beg your pardon, sir. When was that?
Q. Well, do you recollect ever saying that?
A. No, I do not.
Q. Are you certain about that?
A. Well, it depends upon what year you're speaking of. I activated Aleister Crowley's documents of [page 169] authorization in 1970.
Before that, I did not refer to myself as Caliph. From that time forward, I did.
Q. Did I just hear you say that you first obtained what you call documents of authorization in 1970?
A. I did not say that.
Q. What did you say?
A. I said that I activated Aleister Crowley's documents of authorization in 1970 and became Caliph in an emergency as he had provided for.
Q. And what was the emergency in 1970?
A. The emergency in 1970 was that Karl Germer, Outer Head of the Order de facto, had died in 1962.
In 1967 the Crowley library at his home in West Point, California was burglarized and his widow Sascha was treated very unceremoniously. And Germer had left no person to follow him -- designated to follow him.
And therefore this emergency situation arose that Dr. {SIC} Crowley had foreseen 30 years before, and that's why I had the documents of authorization.
Q. Do I understand your testimony to be that you had no authority other than as a Ninth Degree member of the Ordo Templi Orientis until 1970?
A. That is correct. Other than as Frater Superior and [page 170] as Caliph it didn't matter.
Q. Let me show you Defendant's Exhibit 39-A, which is a letter from yourself to a man named Dr. Montenegro.
A. Oh, yes.
Q. Let me ask you to read on page 1 of that letter, the portion that I've marked with yellow, the first three lines of the fourth paragraph and a line in the sixth paragraph, if you would, please.
A. Very well.
This is a letter from myself to Dr. Montenegro. It is dated January 27th, 1960, quote:
"Let us be perfectly clear. I have
never entered a claim to be AC's
'magickal son.'"
THE COURT: Pardon me.
Where is Exhibit 39-A?
MR. MITTEL: It should be in this set of documents, Your Honor.
THE COURT: I have 39 --
MR. MITTEL: It may be attached to the supplemental list.
THE COURT: All right. Go ahead.
THE WITNESS: Very well.
Shall I repeat it?
THE COURT: Yes, please. [page 171]
THE WITNESS: Quote:
"Let us be perfectly clear I have
never entered a claim to being
AC's 'magickal son.'"
"I have never made a claim to being
the legitimate successor to the Caliphate."
BY MR. MITTEL:
Q. Was there a predecessor Caliph?
A. Yes. Mr. Germer was the predecessor Caliph in the eyes of Dr. {SIC} Crowley.
Q. Did Mr. Crowley ever tell you -- I withdraw that question.
Did Mr. Crowley ever send you any kind of a document that indicated that Mr. Germer was the Caliph?
A. Yes. In one of the Caliphate letters he said that "Germer is the natural Caliph, but I must look beyond him for 20 or 30 years hence."
Q. Did Mr. Germer ever indicate to you that you were the Caliph?
A. No.
Q. Who is Gerald Yorke?
A. Mr. Gerald Yorke, now deceased, was an English gentleman who was a friend of Aleister Crowley's and collected Aleister Crowley's works until he had the [page 172] greatest library of Aleister Crowley works in the world. He was never a member of the OTO.
Q. Was he somewhat of an authority on the OTO?
A. He was an authority on the OTO, as an outsider, which made him misinterpret many things because he would lay down edicts of what should be done which, of course, within the Order itself -- from outside the Order, but within the Order itself was simply nonsense.
Q. Was he somewhat knowledgeable about the structure of the Order?
A. Well, he had collected the "Blue Equinox" and things like that, but he hadn't been to California, or anything like that.
Q. Had he ever spent any time with Mr. Crowley?
A. Oh, yes. many years ago Mr. Yorke was a student of Aleister Crowley's, but then he broke with him and remained his friend, collected his works.
Q. So he studied with Mr. Crowley for how many years?
A. I do not know.
Q. Quite a while, though?
A. I do not know.
Q. But he did have the world's largest collection of Crowley material?
A. That was my -- that's -- as far as I know, it was advertised as such. And as far as I know, that is true. [page 173]
Q. Let me show you Exhibit 70-A, which is a letter from Mr. Yorke to Helen Parsons Smith in 1977. Let me ask you to read --
MR. MacKENZIE: Objection at this time, Your Honor. The purpose of this is -- Mr. Mittel and I have discussed whether we were going to stipulate to the Yorke letter.
And do we have a stipulation to that effect?
MR. MITTTEL: Oh, yes.
MR. MacKENZIE: That's fine then, Your Honor.
MR. MITTEL: Oh, yes.
BY MR. MITTEL:
Q. Would you please read the material in the second paragraph and at the end of the letter where I have marked in yellow, please.
A. Certainly. This is from Gerald Yorke to Helen Parson Smith, quote:
"Grady is the first person
I know to call himself a Caliph," C-a-l-i-p-h,
"and I cannot recollect AC
making use of the term. Grady
won't get anywhere worth getting
to."
All right. Paragraph:
"I do not expect it to have [page 174]
Caliphate nonsense," unquote.
Q. So Mr. Yorke then didn't think there was any such position as the Caliph?
A. Mr. Yorke was of that opinion, yet he had sufficient confidence in me to give me a year of first refusal to get the "Thoth" book {SIC sb. "Thoth deck" -pla} published. That's T-h-o-t-h.
Q. Well, you could be a very reliable person and not be the Caliph; is that correct?
A. I could be a very reliable person and not be the Caliph?
Q. Yes.
A. Well, yes.
Q. And you could be a very reliable person with regard to whether there was such a position as Caliph or not; isn't that correct?
A. Certainly.
Q. Yesterday you testified about your letters of authority. Do you remember that?
A. Yes.
Q. As I recollect, how many -- why don't you tell us again: How many letters do you have?
A. Two.
Q. And are those two letters of authority Plaintiffs' Exhibit 20 and Plaintiffs' Exhibit 28? [page 175]
A. 20 is, but 28 is not.
28 is a letter of April 11th from Aleister Crowley giving me first re -- 25 percent of the copyright of --
Q. What is the date of you other letter of authority?
A. April 1946.
MR. MITTEL: Pardon me for a moment, Your Honor.
BY MR. MITTEL:
Q. Which of Plaintiffs' 25 and 28 are not letters of authority?
A. 28.
Q. 28 is not a letter of authority?
A. That is correct.
That gives me some rights and copyrights, but it wasn't one of the documents to take over the operation of the Order of {SIC sb. "in" -weh} California or as his personal representative in any way in America.
Q. Fine. Would you then take a look at Defendant's Exhibit 11, if you would, please, --
A. Yes.
Q. -- and let me ask if that's your other letter of authority?
A. Yes, it is.
Q. All right. Now, would you, first of all, look at [page 176] those two letters that you have in front of you and tell me whether either of them ever mentions the word "Caliph"?
A. Oh, let me see it.
Now, he does not say that in here.
Q. Would you tell me it it's not true that both of those letters limit your authority to California?
A. No, they do not.
Q. Why don't you read the language?
A. Very well.
Q. Why don't you read each letter to the Court?
A. Very well. The first letter March 22, 1946, from Aleister Crowley to myself. Still I read the introduction to this, or just the text?
Q. You can just read the text.
A. Very well. Quote:
"This is to authorize Frater Hymenaeus
Alpha" -- Hymenaeus is spelled H-y-m-e-n-a-e-u-s and Alpha is spelled A-l-p-h-a with a capital A --
"(Captain Grady L. McMurtry) to
take charge of the whole work of the
Order" capital O "Order in California,
to reform the organization in
pursuance of his report of January
25, 1946 subject to the approval [page 177]
of Frater Saturnus" -- that's spelled S-a-t-u-r-n-u-s --
"(Karl J. Germer)" -- G-e-r-m-e-r.
This authorization is to be used only
in emergency."
Q. All right. So as I understand it, that authorization gave you power just for California?
A. That is correct.
Q. And subjectivity to Mr. Germer's approval?
A. That is correct.
Q. And only to be used in case of an emergency?
A. That is correct.
Q. So if Mr. Germer were unavailable, you couldn't use that authority, is that right, --
A. That is correct.
Q. -- if he were out of the country, for instance?
A. If he were alive, I couldn't use it.
Q. Pardon?
A. If he were alive, I could not use it.
Q. Without his approval?
A. That is correct.
Q. And if you were out of the country, you couldn't get a hold of him, then you couldn't have used it?
A. I could -- or it says with his approval. I could take any action I wanted to subject to his approval when he got back. [page 178]
Q. All right. Now, would you read the other letter, please?
A. Yes. Very well. This is Exhibit 11.
Q. That's Defendants' 11, is it not?
A. Well, yes, Defendants" 11. That's right.
"These Precepts" -- capital P, Precepts --- {SIC sb. "Presents" -weh}
are to appoint Frater Hymenaeus Alpha,
Grady Louis McMurtry, Ninth Degree
OTO as Our" -- capital O "Our personal
representative of the United States
of America subject to the approval
revision or veto of Our Viceroy."
Q. So once again whatever power you exercised subject to the letter was subject to Mr. Germer's approval; is that right?
A. If he approved it, I could do anything I wanted to do as long as he approved it.
If he didn't approve it, he would revise it or veto it.
Q. After 1950, did Mr. Germer ever ask you to exercise any authority pursuant to either of these two letters?
A. He suggested that I get a nucleus of people together to start an encampment or lodge. And he suggested that the Order should be incorporated in California. Those were his instructions. [page 179]
Q. And when did he do that?
A. Well, there was a letter in which he mentioned incorporation.
And as to the other, we talked in Los Angeles around 1946, '47 when we were investigating Mr. Jack Parsons' operation.
Q. Did he make those suggestions about getting together with the other members to some of the other members as well, to Mr. Burlingame, to Mr. Leffingwell?
A. He never made any suggestions to me about that; he just wanted the Order incorporated.
Q. Do you know who was actually to take charge of incorporating the Order?
A. Yes. Mr. Jack Parsons of Pasadena and I were supposed to do something. Mr. Jack Parsons had a lawyer who had some material drawn up, but somehow or another it was never completed.
Q. All right. Now, at some point after you finished your investigation of the Agape Lodge --
Do you need a break, Mr. McMurtry?
A. I'm all right. Continue for a little while.
Q. After you finished your investigation of the Agape Lodge, you began to have some difficulties with Mr. Germer, didn't you?
A. Not immediately, but the difficulties with Mr. [page 180] Germer really began when he came west to California from New York and New Jersey.
However, Mr. Germer had the strange idea that he might very well have brought -- he started to get unhappy while he was still in New York.
As a matter of fact, he wrote me from there that -- from New Jersey -- he was not at all happy with what was going on in California.
Q. Right. And as time wore on, he came to disapprove of your conduct more and more; is that right?
A. Well, I -- Yes, he came to disapprove of my conduct but that was because I was a member of the Agape Lodge group, the California group, and he had decided that all of us were not worthy of consideration. And I just happened to be one.
Q. Mr. Crowley was also very unhappy with the Agape Lodge group, wasn't he?
A. Not necessarily of the group, but he may very well have been unhappy with certain members of the group.
Q. Well, he certainly was unhappy about the Agape Lodge group enough to have you go to California and investigate it and write a special report on what you found out, wasn't he?
A. Well, he was puzzled rather than unhappy, because he was getting letters from all of those people that [page 181] presumably he had written to last week and that was the reason for the investigation.
When he told me this in Hastings in 1945, I said, "Well, I know them and you know me. When I get home, I'll take a look at the situation and write your report.
Q. What were the reasons the Mr. Germer began to be unhappy with you?
A. With me?
Q. Yes, sir.
A. I would suppose with me personally it began with the fact that in the 1950s I had borrowed some money from him to buy an automobile, a used car, with the stipulation that I would pay it back at $10 a month.
I eventually did this, but this was not fast enough for Mr. Germer, who had his own financial problems. And he became very unhappy with me about that.
And, of course, by then I had made four trips to Southern California, one to Barstow, three to Los Angeles, trying to get the Agape Lodge group back together in order to say to Mr. Germer, "We need more initiations or we're being dispersed."
When Mr. Germer found out about this, he became extremely unhappy with me and extremely curt. [page 182]
Q. Now, actually wasn't he also very unhappy with your failings as a member of the Ordo Templi Orientis?
A. That was his opinion.
Q. But he was -- he did have that opinion?
A. He had that opinion, oh, yes.
Q. And he shared that with you on a number of occasions, didn't he?
A. Oh, very quietly. In his letters, one or more letters, he was very explicit about Agape Lodge members, people who turned crazy, et cetera, et cetera, so forth.
But other than that, not --
Q. Wasn't he also very explicit about your personal failings?
A. Yes, yes. He thought I was being very -- very bad.
Q. You didn't send any financial support other than repaying your loan to either Mr. or Mrs. Germer, did you?
A. It was impossible. I was a graduate student at the University of California with no GI Bill from the Korean War. I had no money.
Q. But after you stopped being a graduate student and after you started working, you never sent any money either, did you?
A. No. He didn't ask me to send any money.
Q. And you didn't pay any dues into the Ordo Templi [page 183] Orientis?
A. He did not require them.
Q. I beg your pardon?
A. He did not require them.
Q. Don't the provisions of the Constitution require payment of dues?
A. Yes. Oh, yes.
Q. Have you ever written any books or commentary about Thelemic matters?
A. Oh, commentary, yes.
And "Not the News" {SIC sb. "Gnostica News" -pla or "Gnostic" -def}, which was published by someone in Minneapolis around 1970 had quite a lengthy article on Ordo Templi Orientis.
Probably -- oh, let's see, there was the magazine being published by the College of Thelema called "In the Continuum", C-o-n-t-i-n-u-u-m, "In the Continuum", which I contributed to.
And the book -- the "Holy Book {SIC sb. "Books" -def} of Thelema" {SIC sb. "'Books'" -weh} was put by -- under my name. I had something to do with its preparation.
Let's see. Oh, yes. Currently the Order has a monthly publication called "In the" -- sorry -- "Magickal Link". That's spelled M-a-g-i-c-a-l, "Link", L-i-n-k.
Q. Now, does the Constitution also forbid members of [page 184] Ordo Templi Orientis from bringing lawsuits against other members?
A. I do not recall that being in the Constitution. I believe that's in the -- one of the commentaries of the Constitution.
Q. Which is published in the "Blue Equinox"?
A. Yes.
Q. Now, Mr. McMurtry, we were talking before about the Frater Superior.
A. Yes.
Q. And I believe you said that that term appeared in the Constitution. Are you certain about that?
A. I believe it does appear in the Constitution, but I'd have to refresh my memory to take a look at it. There were about three documents of the "Blue Equinox", all pertaining to the governments of the Order. My mile M in in {SIC} there, but if it isn't it isn't>
Q. Let me read a portion of a work entitled "Manifesto of the OTO" --
A. Yes.
Q. -- which appears on page 201 of the "Blue Equinox", paragraph 5. It says:
"The authority of the OTO is
concentrated in the OHO (outer
Head of the Order) or Frater [page 185]
Superior. The name of the person
assuming this office is never
disclosed except to his immediate
representatives."
Is that what you're think of?
A. Yes, that's right.
Q. And so by your claiming to be the Frater Superior, you are claiming to be the Outer Head of the Order?
A. The de facto Outer Head of the Order.
Q. And you're saying that now, even though on a number of occasions in the past you've said you're not the Outer Head of the Order?
A. That is correct. That was in 1960, I believe. And I did not activate Crowley's documents of authorization until 1970.
Q. Well, do you remember during the trial in Maine when I asked you whether you were the Outer Head of Ordo Templi Orientis?
A. That is correct.
Q. Do you remember what your answer was?
A. I believe I said I was not.
Q. You were under oath at that time, were you not?
A. That is correct.
Q. And do you remember earlier I asked you some questions about a letter that you had written to Dr. [page 186] Montenegro in 1960?
A. I believe so.
Q. And would you now look at Defendant's Exhibit 40, which is a letter to you from Dr. Montenegro and Helen Parsons Smith?
And would you read the material that I've highlighted in yellow in the second paragraph on page 1, the fourth paragraph on page 1 and then at the very end of the letter, please?
A. Very well. Quote:
"Specifically I wish to refer,
even if in part, to you letter
of the 27th of January of this
year. Paragraph:
"Suffice it to point out that
in AC's letter to you dated
November 21, 1944 E.V., 16
years ago this very day, and
citing his authority as Baphomet," B-a-p-h-o-m-e-t,
"transcript of which you
also included in the subject
matter of you letter in
question, there is nothing in
it that could be construed in
any way then or henceforth as [page 187]
his intention of appointment to
you as his spiritual or temple {SIC sb. "temporal" -weh}
heir as you infer."
Paragraph -- now, that was from Dr. Montenegro.
And then from Helen Parsons Smith:
"Of my own freewill and accord I
agree with Brother Montenegro,
and have committed myself to serve
him and assist him to the best of
my ability, particularly in that
phase of Great Work," capital G, capital W,
"which he is trying to accomplish.
After careful study of the contents,
I ask that his view and conclusions
as is above be accepted as a joint
statement."
Q. The Helen Parsons Smith who signed this letter to you is the same Helen Parsons Smith who is sitting at plaintiffs' table?
A. Yes.
Q. I think you said that you didn't really -- I may be not quite accurate; correct me if I'm wrong -- have any power because of your authorizations or because of the Caliphate letters until 1970; is that correct?
A. That is correct.
Q. Now, did you ever take a different position?
A. Like when?
Q. Well, at any time before 1970.
A. Before 1970 I had a different position, yes.
Q. What I'm -- No, no. You misunderstood my question.
What I'm asking you is: Before 1970, did you ever take the position that you had power at that time?
A. No, I did not.
Other than the normal Ninth Degree has power to do certain things as the order will certainly show.
Q. Let me show you Plaintiffs' Exhibit 81, which is a letter from yourself to -- I hope I say this correctly -- Jean Shvonen?
A. Yes. S-i-h-v-o-n-e-n, Jean, J-e-a-n.
Q. Would you please read the third full paragraph?
A. This is Exhibit 81?
Q. Right.
A. Very well.
"Here are the facsimiles of AC's
material I promised you a year or
so ago. I finally got the xerox
when it was in good working
condition. On two sheets you
have the envelope and the letter [189]
in which you recognize {SIC sb. "he recognized" -weh} me as 777.
The date of this is November 19th,
1943. But as he is addressing me
as the formal Care Frater," C-a-r-e. F-r-a-t-e-r, matter that informed me by name" -- there is one word here that's been very badly xeroxed --
"I am" something "on one sheet of his
authorization of authority of 1946
and the -- March 1946 and April
1946 in which he specifically
identifies me as the Hymenaeus
Alpha, not that it makes a great
deal of difference as I seek --
as I seem at the time we were
admittedly discussing this since
he makes action contingent on
Karl's say-so. Because it does
form the basis for a legal section" I'm sorry --
"a legal action to recover AC's
letters and things if we were to
keep Sascha" -- S-a-s-c-h-a --
"from having them in case Karl does
not live at all."
Q. So as far back as 1962 you had already begun to think about the possibility of your getting the library [page 190] because of the --
A. No, I think I was thinking of conserving the Order, and the library was part of it.
Q. And you were at that time relying on these letters that we've been talking about, these authorizations?
A. Yes.
Q. Now, did you testify yesterday about how you had lost contact with the Ordo Templi Orientis at some point in time?
A. No, I did not.
Q. Did you ever lose contact with the Ordo Templi Orientis?
A. There was no way of losing contact with it, because there was no organization other than Mr. Germer. And if Mr. Germer wanted to contact me, he could write to me. I was not informed until 1968 that he had died in 1962, which is probably why he never wrote.
Q. Well, back, for instance, in the early 1950s, were there members of the Ordo Templi Orientis other than Mr. Germer?
A. Oh, yes. Helen Parsons Smith, Jean Sihvonen. Ray and Mildred Burlingame I believe were still alive at that time. Phyllis Seckler.
Q. All right. Now, are you saying that you hadn't lost contact with the ordo Templi Orientis in the 1950s? [page 191]
A. No. I definitely had not lost contact -- if you say the "Order," and you mean an organized Order, collecting dues and so forth, there was no such thing.
I was a member, active member of Agape Lodge, intended to be a member of OTO as long as I lived.
Q. Let me ask you to take a look at Defendants' Exhibit 19, which is a letter from yourself to Karl Germer dated April 10, 1952.
Let me ask you to read the highlighted material in the middle of the second paragraph, if you would, please?
A. Now, you only have one sentence highlighted.
Q. That's correct.
A. Quote:
"Does the OTO still exist as an organization," unquote.
Q. Now, you testified that Mr. Germer was unhappy about your conduct as a member of the Ordo Templi Orientis, didn't you?
A. At what time?
Q. Oh, during the 1950s.
A. Beginning of the 1950s, yes.
Q. And the end of the 1950s also; isn't that correct?
A. Oh, yes. It began in the early 1950s and continued on through the time I left for Washington, D.C. in 1961. [page 192]
Q. And you yourself recognized your failings as a member of the Ordo Templi Orientis, didn't you?
A. I beg your pardon, sir?
Q. I said you yourself recognized your own failings as a member of the Ordo Templi Orientis?
A. I am a human being and therefore fallible, so I can have failings, yes.
Q. And you, in fact, spoke of those failings to Mr. Germer, didn't you?
A. Entirely possible. I don't remember offhand.
Q. By the end of the 1950s, though, Mr. Germer was absolutely convinced that you were not going to be a person to be considered as his successor as OHO; isn't that true?
A. I believe that to be true.
Q. Let me show you Defendants' Exhibit 37 and ask you to -- well, that's the letter from Mr. Germer to yourself dated December 2nd, 1959.
Let me ask you to read the highlighted material in the first paragraph, if you would, please?
A. Yes. Quote:
"I have and had told you that
666 discussed with me to keep you
for a prominent position in the
Order. I was only too willing to [page 193]
accept this. What have you done
in the last 12 years to justify and
earn this position? And instead
of a Plus, you've been a great
Minus."
The plus is capital P and the minus is capital M-i-n-u-s.
Q. Thank you.
MR. MITTEL: Your Honor, what's your pleasure about breaks? I am at a good stopping point.
THE COURT: Okay. Let's take a recess at this time for approximately ten minutes.
(Brief recess taken.)
MR. MacKENZIE: Your Honor?
THE COURT: Yes.
MR. MacKENZIE: Mr. McMurtry has indicated to me that he's extremely fatigued and doesn't believe he can continue today.
If the Court would permit, he could return Thursday morning, and I could just continue with my case in chief.
THE COURT: Okay. That's fine.
Now, if he would like a place to lay down there is a couch in one of our conference rooms.
Would you like to lie down? [page 194]
MR. McMURTRY: Yes.
(Discussion off the record.)
MR. MacKENZIE: Your Honor, he would prefer to go home.
MR. McMURTRY: I'm just a little fatigued and I would prefer to go home.
THE COURT: All right then, sir. You are excused, Mr. McMurtry.
(Mr. McMurtry left the courtroom.)
THE COURT: Are you ready to proceed with your next witness?
MR. MacKENZIE: Yes, I am, Your Honor.
Miss Seckler.
PHYLLIS SECKLER,
called as a witness by the plaintiffs, having been first duly sworn, was examined and testified as hereinafter set forth.
THE COURT: Would you please be seated and state your full name for the record and spell your last name?
THE WITNESS: Phyllis Evelynina Seckler, S-e-c-k-l-e-r.
DIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Mrs. Seckler, would you state your age, please? [page 195]
A. Sixty-seven.
Q. Are you a resident of California?
A. Yes.
Q. How long have you resided here?
A. Sixty-four years, approximately.
Q. Are you a member of OTO?
A. Yes.
Q. When did you become a member?
A. In 1939.
Q. What degree do you hold in the Order?
A. Fifth and Ninth.
Q. When did you get initiated as a Ninth Degree?
A. By Karl Germer about 1960.
Q. Did he initiate you orally or were you presented with any document?
A. We discussed the whole matter. I told him what it was about. He gave me a paper called Emblems and Modes of Use.
Q. And did you take any kind of oath?
A. There were no oaths administered at that time.
Q. Did you receive any writing attesting to your initiation?
A. No. Neither was there a document which had my name on it which gave the title. Those weren't being handed out at that time. [page 196]
Q. Now, what is an Emblem and a Mode?
A. Emblems and Modes of Use was a very secret paper which Karl guarded very carefully that if you had it, it had the past history of the Order in California -- as soon as you were handed that paper, you became a Ninth Degree member. It was instructions.
Q. Now, do you remember stating in depositons taken in this case that you had been initiated in an -- orally?
A. I don't remember what I stated in deposition, I'm afraid. But there was a conversation, so I suppose you would call it orally.
Q. I'm sorry. When Mr. Mittel took your deposition --
A. Yes.
Q. -- and at that time one of the questions he asked was how you were initiated.
A. Oh.
Q. Your response was that it had been orally.
A. Yes, that was part of it.
Q. Now, how can you reconcile that with having received the Emblems and Modes?
A. Because it was both done at the same time.
Q. So when you say "orally," you mean that there was an interchange, a verbal interchange?
A. Yes. But I told him what the degree was and then [page 197] he handed me the paper.
Q. Oh, I see.
Well, to make sure I understand it properly, Mr. Germer said something, and you responded and then he said something and you responded?
A. Yes, right, right. An interchange.
Q. Now, in the 1940s, did you belong to any lodge or chapter or attend any meetings of any lodges?
A. Yes.
Q. And what lodge was that?
A. Agape Lodge.
Q. Now, do you know if there were any other chapters or lodges in the United States at that time?
A. The word was that there weren't.
Q. I see.
A. I think we had it directly from Crowley, but I can't pinpoint the letter, that the Agape Lodge was the only functioning lodge of the OTO in the world close to the time of his death.
Q. Do you know how long the Agape Lodge was the only lodge in the United States?
A. Crowley died in 1967.
Q. I am sorry. You said 1967?
A. Let me see now -- 1947. It's been years. 1947 Crowley died. And for quite some time before that, we [page 198] were the only lodge in the world, maybe seven years or more.
Q. Where did you reside in the 1950s?
A. In 1950 to 1955 I resided in Southern California. And in 1955 I got a job as an art teacher and moved to Livermore.
Q. I see. Once -- well, did you maintain contact with Karl Germer in the Order during this period?
A. All the time.
Q. Did you maintain a relationship or contact with Karl?
A. Yes, I knew him. He was very proud of my work for the Order.
Q. Would you say that you knew him well?
A. Quite well.
Q. Were you familiar with the initiation rituals during the 1950s?
A. With two of them, which I took. Minerval and First.
Q. As regards to the Order's initiation rituals?
A. That's what I mean, Minerval.
Q. Now {SIC sb. "Not" -pla} only yourself, but any initiation activity that the Order was doing at that time.
A. They weren't doing too much. It was mostly Minervals and Firsts. [page 199]
Q. Well, when the initiations where given, who would give them?
A. Members of the -- or heads of the Agape Lodge, whoever they happened to be.
Q. Would Karl give initiations?
A. No, he would not. He didn't like them.
Q. How do you know that?
A. Because it was obvious from the letter he wrote to Jane Wolfe --
MR. MITTEL: Objection; hearsay.
THE WITNESS: -- and from the things he said.
MR. MITTEL: And Best Evidence.
THE COURT: Do you have the document?
MR. MacKENZIE: No, we don't have the document, Your Honor.
MR. MITTEL: MOve to strike as hearsay.
BY. MR. MacKENZIE:
Q. Well, let me ask you this: --
THE COURT: Yes, that is hearsay.
BY MR. MacKENZIE:
Q. -- Did he ever tell you personally that he did not like doing the rituals?
A. Yes, he did.
MR. MITTEL: Objection; hearsay. [page 200] Relevance.
THE COURT: No, not directly.
THE WITNESS: No, I heard it from his lips.
MR. MITTEL: When he's not here --
THE COURT: Then -- pardon?
MR. MITTEL: I say what he may have said --
THE COURT: I know. I know. But it's what he told to her directly; it's not hearsay.
BY MR. MacKENZIE:
Q. Did he tell you why he did not like doing initiations?
A. He called them the lower magic.
Q. Did Karl perform any rituals?
A. He called that the lower magic.
Q. Does that mean he did not do them?
A. That's right. He considered his position was far above that.
Q. So it's your testimony that he did not perform rituals or initiations?
A. That's right. He didn't even know the basic banishing ritual. I have a letter from him to Jane asking if she will explain it.
MR. MITTEL: Objection; Best Evidence. Move to strike those comments. [page 201]
THE COURT: Sustained.
BY MR. MacKENZIE:
Q. Have you ever seen Karl give an initiation?
A. Never.
Q. But he gave you one?
A. Just the Ninth with that particular informal type of meeting that I told you.
Q. Now, to make sure I understand: Are you saying there are more formal initiations?
A. Yes. Ceremonies.
Q. And what degrees are those?
A. All the degrees, except I don't believe anything beyond maybe six or eight has that type of initiations.
Q. So when you talk about basic rituals that he did not perform, are you referring to these lower --
A. Yes.
Q. -- initiations?
Do you recognize the name of Frank Dory (phonetic)?
A. Yes.
Q. Who was Frank Dory?
A. A gentleman who first wrote to Karl when he was in Campton {SIC sb. "Hampton" -pla}, New Jersey. And in 1956 Karl Germer came to the West Coast and Mr. Dory seemed like a very interested person so Karl and I went to see him. [page 202]
Q. And why did you go see him?
A. To discuss Mr. Dory's correspondence and his interest in Thelema.
Q. I'd like to show you Plaintiffs' Exhibit No. 376, and if you will tell me if you recognize this exhibit?
A. Yes.
Q. Did you write this letter to Karl Germer?
A. Yes. This is a letter from me to Karl Germer of April 22, 1957.
Q. and would you read the portion marked at the very bottom paragraph of the first page, please?
A. Just the yellow marks?
Q. Yes, please.
A. "I think Dory would love to join the OTO or A.'.A.'."
Q. And --
A. "And of course nothing could materialize for OTO at the present state of affairs."
Q. What was your purpose in writing this letter?
A. To see if Karl would do something perhaps for Mr. Dory.
Q. And what do you mean with by "Of course nothing could materialize for OTO at the present state of affairs"?
A. Because OTO was somewhat dormant; Karl was the Outer Head of the Order by his own decree; he refused to [page 203] initiate. There were no new members; there were no initiating teams, no officers. There was no money. There was just -- just Karl's authority, and that was about it.
Q. Well, did you know if Karl ever initiated Frank Dory?
A. No, he did not.
Q. Did Frank Dory want to be initiated?
A. He mentioned it, but I had to discourage him. There was no hope at that moment.
Q. Did you and Karl ever discuss the initiation, intended initiation of Frank Dory after this letter?
A. I can't remember.
Q. Okay. Have you ever met the defendant, Mr. Motta?
A. Yes, I have.
Q. And when did you meet him?
A. In January of 1957.
Q. Could you explain the circumstances of that meeting?
A. Yes. I was teaching. And Karl Germer, Jane Wolfe and Marcello Motta came to visit with me at my house for four days.
Q. Was Mr. Motta introduced to you at this time?
A. Yes, he was introduced.
Q. Did you speak with him? [page 204]
A. Of course. He was a guest.
Q. Was he introduced to you as a member of the OTO?
A. No, I can't remember that.
Q. Was he introduced to you as a Ninth Degree?
A. I would certainly have remembered it, and I don't think he was.
Q. Are you absolutely certain of that?
A. As certain as one can be over this period of time. I would remember such a mention of a high grade.
Q. Are you aware that Mr. Motta had written that he was introduced to you as a Ninth Degree?
A. I learned about it only recently, maybe a week or two ago.
Q. And what is you reaction to that claim of his?
A. I'm sure I don't know. It's his business, not mine.
I don't know.
Q. But he was not introduced to you as an OTO member?
MR. MITTEL: Objection, leading.
THE COURT: Well, it is a repetition of what you said before, but I'll let it stand.
BY MR. MacKENZIE:
Q. You can answer the question.
A. No, I can't remember that.
Q. All right. When did you first learn of Karl [page 205] Germer's death?
A. Immediately after. I was the first person Sascha Germer wrote to about Karl's death.
Q. How well did you know Sascha?
A. Quite well. My family and myself had visited Karl and Sascha Germer at their home in West Point several times.
Q. Did you know her well enough to judge her mental condition?
A. Yes.
Q. Could you describe her mention {SIC sb. "mental" -def -weh} condition at about this time, 1962?
MR. MITTEL: Objection; foundation. If the witness is going to testify about the mental health of --
THE COURT: Well, the witness certainly is not a psychiatrist and can't give a medical or psychiatric opinion, but she can still testify as to her observations about and her conversations with the witness, with Sascha Germer, and what she observed from that.
THE WITNESS: Sascha was very upset. She would contradict herself many times. She claimed that she had been magically attacked in various instances. And at one time accosted -- [page 206]
MR. MITTEL: Objection to what the declarant, Mrs. Germer, may have said as hearsay, Your Honor.
THE WITNESS: That's what she told me.
MR. MacKENZIE: It's not offered for the proof of the matter. It is offered to establish state of mind.
THE WITNESS: Yes.
THE COURT: Well, that's true. I don't think it falls within the definition of hearsay.
MR. MacKENZIE: Go ahead.
THE WITNESS: May I go on?
BY MR. MacKENZIE:
Q. Yes, please.
A. She told me that an airplane had buzzed her while out in the garden. She told me that she had been called up by persons -- a person who wanted her to have a polio -- what do they call it?
Q. Vaccination?
A. -- Vaccination, because that was the time when everyone was having those. She claimed that was -- that they were persecuting her.
She claimed that she and Karl Germer could not speak to each other in the house the whole year before he died, that the walls were bugged and the [page 207] telephone was bugged, and they both believed that.
There were quite a few other things too, --
Q. Well, why don't you --
A. -- but those are the main things.
Q. Why don't you mention the other ones?
A. She told me the history of her life.
Q. I see.
A. I expressed a common-sense attitude, and she told me that once she had had common sense. And she had, ever since marrying Karl, and had been persecuted by the FBI.
And, of course, you know she was in Austria and persecuted by the Nazis. And that she simply did not believe those things any more, and she told me that everybody was against her.
Q. I see.
A. And not only that, but later on when we investigated her case whether she was alive, the constable told us that she had told him to get off the property.
Now, the constable investigated each widow --
MR. MITTEL: Objection, Your Honor, to what the constable said as --
THE COURT: Sustained.
MR. MITTEL: -- hearsay. [page 208]
THE COURT: That is sustained as hearsay.
BY MR. MacKENZIE:
Q. So it was in 1962 that you learned of Karl Germer's death?
A. Yes.
Q. All right. Did you tell Mr. McMurtry of Karl's death?
A. Not right away. I didn't know where he was.
Q. I see. When did you tell him?
A. I told him in 1968 because he wrote me a small note with his address on it.
Q. I see.
A. And I was investigating the thefts.
Q. Now what thefts are we talking about?
A. Of Sascha's library in 1967.
Q. What was the state of the Order's Archives immediately following Karl's death?
A. There was supposed to be a will, but nobody could find it. And the archives were in Sascha's care. She was a little unprotected lady in the country, and I was very worried about her.
Q. And she had the Archives in the house?
A. Yes.
Q. Now, on that 1967 theft, were you ever accused yourself of the theft? [page 209]
A. I don't think I was accused, but my daughter was accused.
Q. Why did she accuse your daughter?
A. She thought that the hands of the woman who entered the house at the time of the theft were like my daughter's hands. She did not see the face.
Q. I see. And what was your response to this accusation?
A. The accusation came to me by telegram over the phone. I was terribly shocked. I immediately sent a telegram back, which she must have gotten, because you have to answer your own phone, denying what happened, saying that we would -- none of us -- harm her in any way.
Q. I show you Exhibit 12, Plaintiffs' Exhibit 12, and ask if your would identify that, please?
A. This is my letter to her about the thefts, the letter that she never opened.
Q. How do you know she didn't open it?
A. She sent back the envelope with "Return to Sender" on the outside. It had never been opened.
Q. Will you take a look at page 3 of that document and tell me if that's a copy of that envelope?
A. Oh, yes.
Q. All right. Did you send any other letters in [page 210] regards to this?
A. Much later when Grady had finished his investigation and we had discovered who the thieves were, yes, I sent her a letter. There was no return address on it so that she could not send it back.
Q. All right. Now as regards to sending -- I'm asking if you sent letters to any other people at the time of this accusation?
A. Oh, yes. I sent letters to many people trying to find out who would steal the materials from Sascha Germer.
Q. In you letter of Exhibit 12, did you state any reason why your daughter was not the thief?
A. Yes. She was elsewhere at the time. On the Sunday of that particular weekend she attended church. The next day she was with friends and her family. She had no interest in those materials whatever.
Q. Is your daughter a member or has she ever been a member of OTO?
A. Never. She is not interested in Thelema.
Q. Do you know about how far your daughter lived from Sascha Germer's house at the time of the theft?
A. About four hours' travel.
Q. Now, after Mr. McMurtry received your letter to him -- [page 211}
A. Um-hum.
Q. -- in 1968 telling him about Karl's death, what -- did he write to you?
A. Yes. We started correspondence immediately.
Q. And did he return out to California?
A. Yes, at my suggestion.
Q. On his return, did the two of you undertake any activity on behalf of the OTO? And this is 1969.
A. We certainly did.
We got the only remaining member available from Agape Lodge -- that was Mildred Burlingame -- and in 1969 we had our first OTO meeting. There were only three of us, but Grady was well prepared for it. He did a beautiful job.
Q. Was Grady leading the meeting?
A. Yes.
Q. Why did you acknowledge Grady as the leader of that meeting?
A. I had saw {SIC} the Caliphate letters.
Q. And you accepted the Caliphate letters?
A. Yes, it was Crowley's wish. In out "Holy Book" it says, "Obey my prophet." And so that was part of the obedience.,
Q. I see. Did you begin initiations, or did the Order begin initiations? [page 212]
A. Yes, we did. Actually I think it was 1969 Mildred had some friends, and we began initiations.
Q. Now, were records kept of these initiations?
A. I kept all the records. I was Secretary-Treasurer.
Q. Why did you keep records?
A. That was the way it was done in the OTO from the very early times.
Q. And what sort of records were these?
A. Every person who was initiated was in the records and what they paid for the initiation fee.
Q. Now, are you saying dues or initiation fee?
A. Both.
Q. Both.
A. Yes, both.
Q. Were there --
A. There were dues, yes. Two kinds of payments. One was dues for the year; the other was the initiation fee.
Q. Is dues an OTO tradition as well?
A. Yes. That is except when Karl was head.
Q. I'm sorry. When Karl was?
A. When Karl was head, there were very little dues paid.
Q. Do you know if he insisted on collection?
A. No, he didn't. He didn't at all.
Q. From anyone? [page 213]
A. From anyone.
Q. Are dues something that Aleister Crowley required?
A. Dues were required by the OTO, but every one of us went through the depression and we were poverty-stricken.
Q. Yes.
A. We did what we could.
Q. Did you undertake any publishing?
A. When?
Q. At about this time.
A. Yes. I started "In the Continuum," I think the year was 1973, or maybe it was '74, somewhere in there.
Q. And what exactly is "In the Continuum"?
A. It is a Thelemic publication which publishes in every issue things done by Crowley, which I thought were needed by new persons coming to Thelema.
It also publishes Crowley's poetry and poetry of other persons.
It publishes instructions for rituals and explanations.
It publishes articles having to do with Thelema.
Q. Did you do this on behalf of the OTO?
A. I started it on behalf of the OTO again.
Q. Now, did you keep in contact with Sascha Germer? [page 214]
A. I couldn't. She got angry at me and said -- told me she never wanted to see me around again.
Q. I see. Did you ever attempt to contact her.
A. After about the fifth meeting at her house was when she told me to stay away.
Q. I see. Well, did you ever go up to West Point?
A. Oh, we went to West Point to inquire whether she was still alive, but we had to inquire from the constable.
Q. And how often did you go up to West Point?
A. We did this every year, except somehow we missed the year that she did, unfortunately.
Q. Well, how did you learn of Sascha's death?
A. That was the year we went up to West Point to inquire.
Q. Yes.
A. And it seemed she died the year previous to that. She died 1975, and we found out she was dead in 1976.
Q. And what was your purpose of going up there?
A. We were worried about the library.
Q. I see.
A. And we -- actually we had contacted a lawyer, but we couldn't afford it. We thought we should have taken it from Sascha because she was not a member of the Order [page 215] and put it in the O -- hands of the OTO. That was according to Crowley's will. It belonged to the OTO. And we couldn't do that at the time, so we sort of kept an eye on it.
Q. I see. You couldn't do it because of the attorney fees.
A. Yes. It was too much for us.
Q. Well, after you had learned of her death, what did you do next?
A. Then we went to Calaveras County and contacted -- oh, at the same day we learned of her death, we contacted the Coroner, two Coroners.
Q. Two Coroners?
A. Two Coroners. The Deputy Coroner and Mr. Gualdoni, the main Coroner. And we were told the whole story of how she died and what was in the house.
And we began immediately to ask Mr. Gualdoni to take care of those papers.
He said he had posted the house for no trespassing, --
Q. Yes.
A. -- but he also had the information that that house had been broken into at least three times that they knew about.
MR. MITTEL: Objection; hearsay. Move to [page 216] strike the answer.
THE COURT: It is hearsay, but it may be purely foundational.
BY MR. MacKENZIE:
Q. Well, were you ever aware of any previous thefts of Sascha Germer's house?
A. The one that took place in 1967 when she accused my daughter. That was the previous theft.
Q. Were you aware of any other thefts?
A. I don't have any proof of any other thefts. That is, after her death I have no proof.
Q. Did she ever tell you about any thefts?
A. She only told me by letter about the theft in 1967.
Q. Was there ever any subsequent discussion made by anyone concerning these alleged additional thefts? Did anyone ever discuss that, in the court proceedings of otherwise?
A. No. If the house was vandalized, nobody could prove it. It was not discussed.
Q. Okay. Did Mr. Gualdoni ever say that Sascha Germer had starved to death of malnutrition?
A. No.
MR. MITTEL: Objection; hearsay.
THE COURT: Could I have the last question read back, please? [page 217]
(Record read by the reporter as requested.)
MR. MacKENZIE: That's not offered to prove the truth of it, Your Honor.
THE COURT: That's not even an assertion. It's just a kind of a nonquestion.
MR. MITTEL: Well, but it's one of those hearsay by conduct kind of things. They are offering that to prove the cause of death was not starvation.
THE COURT: Well, I'm not going to consider that in weighting the evidence, as I'm not giving any weight to the question.
THE WITNESS: You have the death certificate, anyway. And that does not say "starvation."
MR. MacKENZIE: Thank you.
BY MR. MacKENZIE:
Q. Moving back to earlier times, did you ever corresponding with Mr. Motta because of Karl Germer's death, inform him of it?
A. Sascha asked me to correspond with Mr. Motta after Karl's death in 1962.
Q. And did you continue this correspondence?
A. I did, until Mr. Motta got impossible.
Q. By "impossible," what do you mean?
A. I considered the things he said were insulting. [page 218]
Q. Would you expound on that?
A. I can't remember the letter exactly, but first -- I'm trying to remember -- first he tried to order Sascha and me around as to what we should do. He claimed he was our superior, something like that. I don't know the words.
MR. MITTEL: Objection; Best Evidence. Move to strike that --
THE COURT: Is the letter in evidence?
MR. MITTEL: -- unless the letter is around.
MR. MacKENZIE: I don't believe it is, Your Honor.
THE WITNESS: I couldn't produce it.
BY MR. MacKENZIE:
Q. Then don't testify as to the contents of the letter. I am more interested in your reaction as to why you felt he was impossible?
A. He insulted me in his letters, and I decided never to write to him again at that moment.
Q. I see. All right. Well, did you ever write to him again?
A. I wrote to him, forgetting the past, just before we discovered Sascha's death, two weeks before.
Q. And about how many years was that in the interim [page 219] period?
A. That was -- Karl Germer had died in 1962. My letters to Mr. Motta ended in 1963. We discovered Sascha's death in 1976, so the interim was ...
Q. After you ceased writing to him, did he ever correspond with you?
A. I think he tried.
Q. I see. Now, when you next wrote to him just a little before Sascha's death or finding out about the death, why did you write him again?
A. I was thinking about the library and I thought maybe Mr. -- oh, yes. Mr. Motta had published, and I was glad that Crowley was being published.
Q. I see. Do you remember what he published?
A. It was Commentary on Liber Al {SIC sb. "AL" -def}, A-l.
Q. That's spelled L-i-b-e-r.
And did you read that book?
A. Yes.
Q. And what exactly did that book -- what did it contain?
A. It was Crowley's commentary on the "Holy Book" that he took down.
Q. So it contained writings of Crowley?
A. Yes. But Mr. Motta had thrown out a lot of Crowley's writings on the commentary and put in his own. [page 220]
Q. I see. I'd like to show you Plaintiffs' Exhibit 50 and ask if you will identify that for me, please?
A. Okay. This is a letter written by me to Mr. Motta of April 28, 1976.
Q. Would you read the portions that I have marked, underlined, and that is the very bottom of the first page.
A. Uh-huh.
"I have spoken to the officials
concerned very seriously and Helen
and I are trying against odds to
have whatever remains of AC's
writings preserved."
Q. Ia this the letter where you are telling Mr. Motta about the death?
A. Not the death, but about the theft -- oh, yes, that's right. Sascha's death?
Q. Yes. I'm sorry.
A. Yes. I told him about Sascha's death. That's right.
Q. And turning to the second page, the portion I have marked, if you will read that portion in the last paragraph?
A. "However, you or your
representatives will have to [page 221]
come to California" --
Q. Go on.
A. -- "to fight for it.
"By the way, there is a possibility
that the house and grounds and all
within the house could be sold
as is."
Q. Okay, that's fine. Thank you.
Was it your intention -- well, tell me what your intentions were in that one sentence:
"However, you or your representatives
will have to come to California to fight
for it"?
A. That was what Mr. Gualdoni told us. We tried to explain what we could about this.
Q. Okay. Did you ever speak with Jim Wasserman?
A. Yes.
Q. And when was that?
A. In 1976 in reference to rescuing the library from the hands of the State of California.
Q. And how did you correspond with him?
A. I believe Helen had phone calls. I'm not sure just how we did that.
Q. All right. You don't remember if you corresponded?
A. I can't remember whether I had sent a letter at [page 222] that particular moment.
Q. Okay. Did Mr. Wasserman subsequently come to California?
A. Yes, he did.
Q. And when he was in California did you meet with him?
A. Yes, we did.
Q. Where did you meet with him?
A. In San Francisco at his motel.
Q. I see. And did you meet with him anywhere else?
A. Yes. That same evening we drove him to Dublin where he took a motel room. And we discussed what could he done.
Q. I see. Did you ever talk with him in Calaveras?
A. Yes. Helen, Mr. Wasserman and I drove up to Calaveras together the next day. West Point, I should say. We went --
Q. West Point?
A. Yes.
Q. Now, had you in the meantime petitioned the Court for possession of the library?
A. Yes. Helen and I and Grady McMurtry had employed a lawyer.
Q. I see. I'd like to show you Plaintiffs' Exhibit No. 34, which is an Order of the Calaveras County [page 223] Superior Court --
A. Yes.
Q. -- recognizing Grady as the authorized representative of the OTO?
A. Yes. What was the date on this?
Q. The date i -- there is a date stamped.
A. Oh, yes. Right.
Q. Is this an Order of the Court?
A. Um-hum -- yes.
Q. Thank you. All right.
I'd like to show you Plaintiffs' Exhibit 70 and tell me if you recognize that, please?
A. Yes. This is a letter to me form Mr. Motta, 11th of May 1976.
Q. Would you read the portions marked on the bottom of the first page, please?
A. All of the yellow sections?
Q. Yes, please.
A; "We had registered the OTO legally
in Brazil. We are in the process
of registering the OTO seal legally
in Brazil."
Q. Go on.
A. "I believe this has never been done
in the USA and I believe that you, [page 224]
McMurtry and Helen should go do it
at once."
Q. Now, let me stop you there. What is your understanding or your recollection of that, of those instructions?
A. It was probably good advice, concerning what happened later. But I didn't know it at the time.
Q. Okay. Well, did you understand him to say that you should incorporate?
MR. MITTEL: Objection; leading.
BY MR. MacKENZIE:
Q. What is your understanding of that correspondence?
A. It says that he thinks we should register the OTO seal in the United States, and if anything -- I thought -- I didn't think that was necessary because the OTO had had that seal for so long.
Q. I see. Now, at the bottom of that page he writes, "I am reformulating the rituals," in the bottom paragraph.
A. Yes. He does, he says, "I am reformulating the rituals."
May I remark --
Q. Yes. I'd like your opinion.
A. Mr Grant was thrown out of the OTO by Karl Germer for doing just that thing. [page 225]
Q. For reformulating the rituals?
MR. MITTEL: Objection; foundation. Move to strike the answer.
THE COURT: You mean the testimony.
I think you better lay a foundation for her knowledge.
BY MR. MacKENZIE:
Q. You are familiar with the OTO history?
A. Yes, I am.
Q. And as such, you are familiar with goings-on of some of the members?
A. Yes.
Q. You are familiar with Mr. Grant?
A. I've only heard his name. I didn't meet him. Karl discussed him with me.
Q. And did you ever hear anything about his membership?
A. I heard and later read that Grant had been in England and he was given authority to establish an encampment of OTO in the Valley of London and was later expelled.
Q. You had heard he was a member of the OTO and was expelled?
A. Yes, I heard he was, but I don't know how -- I don't know what section. [page 226]
Q. Do you know if he was thrown out?
A. Yes. Grant was thrown out by Karl Germer.
Q. And do you know the reason for that?
A. Yes, because Grant wanted to rewrite the rituals.
MR. MITTEL: Objection.
MR. MacKENZIE: I think she said heard from the Order, Your Honor.
THE COURT: Well, --
THE WITNESS: I already --
BY MR. MacKENZIE:
Q. Did Mr. Germer tell you those things?
THE COURT: If she is going to testify about what the correspondence shows, then the documents are the best evidence. {SIC sb. "MR. MacKENZIE: " -def}
THE COURT: Well, this is a material issue regarding --
MR. MITTEL: Well, I think --
THE COURT: -- whether or not someone by the name of Grant was expelled.
MR. MacKENZIE: Well, it's the reason for the expulsion, Your Honor.
MR. MITTEL: That's --
MR. MacKENZIE: I think I can finish with the expulsion. We're talking about historical matters, and this is over 40 years old. [page 227]
MR. MITTEL: They're going to argue that --
THE COURT: Are you saying there is communication with others regarding the reason for Mr. Grant's expulsion?
MR. MacKENZIE: I am sorry, Your Honor.
THE COURT: Well, are you going to ask the witness what she was told or read about the reasons for Mr. Grant's expulsion?
MR. MacKENZIE: Yes, that's correct.
THE COURT: Okay. What exception to the hearsay rule are you relying on?
MR. MacKENZIE: Your honor, I was -- well, Your Honor, we also have Plaintiffs' Exhibit 10, which may obviate the necessity for this, which is the Notice of Expulsion directed to Mr. Grant signed by Karl Germer.
Perhaps I can ask the witness if she recognizes this and if it would refresh her recollection.
THE COURT: This has been submitted in evidence?
MR. MacKENZIE: I don't know if it has been objected to.
MR. MITTEL: That is now your Exhibit, I [page 228] think, 10.
THE COURT: We will use your question as -- let's use Exhibit 10.
BY MR. MacKENZIE:
Q. Let me show you Exhibit 10. Can you identify that, please? Do you recognize this.
A. Yes, I recognize this.
Q. And what does it say?
A. I will read the whole thing. This is --
Q. Why don't you summarize it?
A. It says that Grant was given a small and limited authority to establish a camp of OTO in the Valley of London. And that authority is withdrawn. And Karl Germer formally expels Grant from membership in the Ordo Templi Orientis.
Q. And does he state the reason for Expulsion?
A. He says:
"You have grossly abused the
trust that was placed in you
by printing and distributing
a so-called Manifesto without
my approval and behind my back.
You have shown lack of the sense
of decency and for due authority
by making false and misleading [page 229]
statements therein, printing
outright lies and generally
failing {SIC sb. "sailing" -def -weh} under false pretenses.
You have shown moral and
spiritual dishonesty and proved
yourself utterly unworthy for
leadership in a cause that is
even slightly connected with
and Order like the OTO, much
less than with a cause like
the Law of Thelema."
Q. Is that -- is it on this document that you base your statement that he was expelled for reformulating the rituals?
MR. MITTEL: Objection; Best Evidence. The document doesn't say anything about that.
THE COURT: Well, no, it doesn't. But it can still be used to refresh her recollection.
BY MR. MacKENZIE:
Q. Does that document refresh your recollection as to the reason for Mr. Grant's expulsion?
A. Yes.
Q. And what is that reason for his expulsion?
A. For reformu --
MR. MITTEL: Objection; -- [page 230]
THE WITNESS: -- for reformulating the rituals.
MR. MITTEL: Objection; foundation.
THE COURT: What is the basis of your knowledge?
THE WITNESS: There is a passage written in a certain book about the history of the Order that Grant reformulated rituals.
THE COURT: Well, where did you hear this?
THE WITNESS: It's written in a book. And I also read letters.
THE COURT: Well, I'm going to exclude that portion of your testimony under the hearsay rule.
MR. MITTEL: Did you say you're --
THE COURT: Yes, I am sustaining your objection.
MR. MITTEL: Fine. Thank you.
BY MR. MacKENZIE:
Q. After the Court awarded Mr. McMurtry on behalf of the OTO, the Archives, what happened to all those Archives?
A. The very same day that the Court awarded us the Archives, Grady and I took home a big load in my station wagon. [page 231]
A few days later we got a large van, a friend of ours drove it, and the three of us went to Calaveras County and got the rest of the material from the storage where it had finally been placed by Mr. Gualdoni.
Q. And you removed that material?
A. We removed the material and brought it to my house in Dublin.
Q. All right. Was Mr. Mcmurtry with you during this time?
A. Yes, he was.
Q. And how long was he with you?
A. He stayed at my house for about two days --
Q. I see.
A. -- sorting material and looking through it.
Q. Do you know if he took any material with him?
A. Yes, he took material, but I don't know exactly what.
Q. I see. And when did you put this is storage?
A. The very next day after he left.
Q. Why did you put it in storage?
A. Because I was frightened. Sascha Germer had been robbed, beaten, tied up, and stuff thrown in her face.
And I expected the same thing to happen to me, not from Mr. McMurtry, but from other wild people.
Q. Why didn't you entrust it to Mr. McMurtry? [page 232]
A. Because he couldn't afford the storage, and he could not put it in his house any more than I could put it in my house.
Q. Why do you say that?
A. Because for the same reason: It could be stolen.
Q. Well, what did you do once it was put in storage?
A. I let him know eventually that that -- it was in storage, and I paid the bills from then on.
Q. Well, did you ever inspect it?
A. Did I what?
Q. Did you ever inspect it, the material?
A. Yes. I went to the storage, as time would allow, took one box out, brought it home, and made an inventory of all the material that was there.
Q. And how long did it take to do that inventory?
A. Oh, about a little less than a year, I believe.
Q. So from '76 to '77 approximately?
A. Approximately, um-hum.
Q. Out of the material that was, well, the Archives, did you ever sell any of it?
A. Helen and I sold some of the extra books. There were many copies of "Liber Aleph", many copies of other books like "Ola" (phonetic) {SIC sb. "Olla" -pla -def}, of which we have a list which we have now. That was to repay me my expenses, because I was retired at the time -- [page 233]
Q. Yes.
A. -- and I had very little money, but I had footed the bill for all of this.
Q. About how high were your expenses?
A. They were close to $2,000.
Q. I see. Did you ever sell the originals of any books?
A. No, never. Every -- every book of which we had only one copy we kept.
Q. Now, there was the theft from the storage location, was there not?
A. Yes, there was.
Q. When did that occur?
A. I discovered it in April of 1979.
Q. Like to show you Exhibit No. 53 here and ask you if you will identify that, please?
A. Yes. This is a page of accounts regarding the AC-Germer materials rescued from the State of California. I have here the list of all the costs.
Q. I see. All right.
A. And the grand total was $1,906.47
Then down below -- you want to me to read the rest of this?
Q. No, that's fine. Thank you.
A. Okay. [page 234]
Q. Throughout this time, did you believe the books were yours or the Order's?
A. I believe they belonged to the Order, but I am a Ninth Degree member of OTO and all the property of the Order belongs to the Ninth Degrees in common.
Q. When you say "in common," there is also a legal definition, and I want you to tell me what you mean by the words "in common." Does that mean everybody owns it --
A. Yes.
Q. -- jointly?
A. Yes, the Ninth jointly. It's written in the "Blue Equinox" the exact sentence.
Q. Fine. Now, how did you discover that theft?
A. I had last been to the storage place in October of 1978 that I can pinpoint. I had been there regularly to pay the bill, but I don't remember opening the door.
Q. Yes.
A. And then I -- in April of 1979 I went again. The lock was undisturbed; it was just as it always had been. I opened up the storage and to my great shock, everything was gone, everything.
Q. What did you do?
A. I immediately rushed to the office of the storage place and asked them to phone the police. They did. [page 235]
The police came out right away. After I had the conference with the policeman, I was asked to pit together just exactly what had been stolen for them, which I did.
Q. Yes.
A. And it's on record in Livermore.
Q. Yes.
A. And then when I hot home, I immediately phoned Bill Heidrick to tell him about it.
Q. Did the police ever find out who did it?
A. No. As far as I could see, there {SIC sb. "they" -weh} weren't even moving on the project.
Q. But they never gave you any conclusion to the case?
A. No.
Q. Okay. I'd like you to look at No. 18, Plaintiffs'.
A. (Witness complies.)
Q. Now, did you ever have any idea or thoughts even real or imagined as to who might have taken the library?
A. I had many. I was terribly concerned.
Q. I see. What is Document 18?
A. Document 18 is a letter from me to Bill Heidrick -- That's H-e-i-d-r-i-c-k -- of April 20, 1979.
In this letter I tried to pinpoint who might have been interested in stealing the library.
Do you want me to read further? [page 236]
Q. Well, I'd like you to tell me who these people are.
A. First on the list is G.M.Kelly of "New Eon {SIC sb. "Aeon" -def} Newsletter" (phonetic). I had been subscribing to his Newsletter.
Q. All right.
A. All of these people, one-two-three-four-five-six-seven, seven of them had gotten my issue of "In the Continuum," which told the story of the rescue of the Crowley-Germer material from West Point.
And I thought these people might know too much, because I had said in my article that these materials were stored far from my home.
Q. Yes. Now, reading down at the second bottom paragraph, would you read the portion that's been underlined.
A. "But I have thought Motta might
have had a hand in this, so you
aren't the only one this thought
has occurred to."
Q. Did you think anyone -- so you entertained the thought that Mr. Motta may have had a hand in it?
A. Yes.
Q. Did you ever think anyone in the OTO took it?
A. Yes, I did.
Q. And who was that? [page 237]
A. I thought maybe Bill might have or maybe Helen might have.
Q. Bill Heidrick and Helen --
A. -- Parsons Smith.
Q. Do you still believe they took it?
A. No.
Q. Did you ever find out they took it?
A. No.
Q. Was your name on the account --
A. Yes.
Q. -- at the storage?
A. As Phyllis McMurtry.
Q. Do you know if this information as to the renter's name, that it was available to other people?
A. When I first took the storage, I asked that question: Would names be available? They said, "No."
Then they changed hands, and after the thefts I asked the question again, and they said, "Well, yes, they might give out information about who the people were that took storage."
Q. Now, you were married to Mr. McMurtry, were you not?
A. Yes.
Q. During what time?
A. From 1979 to 19 -- [page 238]
Q. I'm sorry. '79?
A. Pardon me. 1969. 1969 when he first came out here we were married.
Q. And how long did you live together as husband and wife?
A. Until April 1975, when we separated.
Q. I see. What was the nature of your relationship when you separated?
A. Quite acrimonious.
Actually I couldn't afford him.
Q. I see. What was the OTO's reaction to your storage in 1976?
A. They didn't like it.
Q. Did they threaten any kind of reprisal?
A. Yes, we had quite a fight.
Q. And what was the result of that?
A. The final result was that I was asked to go through a certain ceremony, and we made up our differences.
Q. Well, did they ever -- was there ever a meeting in which there was a discussion with reprisals against you?
A. There were tapes that I heard.
Q. Were you ever present at a meeting?
A. No. [page 239]
Q. I'm sorry. What kind of tapes did you hear?
A. The Supreme Council tapes.
Q. Concerning?
A. Concerning what they were going to do at the time, whether they were going to get rid of me, throw me out of the OTO.
Those I heard; I didn't hear any others.
Q. At the time you put the library into storage, did you have any contingency plans in the event something happened to yourself?
A. Well, Helen knew where everything was. And the contingency was that she would, as a Ninth Degree member, take care until the OTO as an organization could pay storage.
Q. Now, how did it come that Helen knew where it was?
A. Because she and I trusted each other. We were both Ninth Degree members. We were both from Agape Lodge. We were both good friends.
Q. And you took her to the storage locker?
A. Yes.
Q. How many times?
A. Two that I can remember specifically. And there may be a couple more, but I'm not sure.
Q. How long have you known Helen Smith?
A. Since she joined the Order in 1941. [page 240]
Q. What is the nature of your friendship?
A. We are both Thelemites, so we have an agreement on that score. And we also like each other. I guess that --
Q. Okay. Did you ever talk to her about the theft?
A. Yes. I tried to contact her immediately, but couldn't find her.
Q. I see. Had you ever signed any sort of authorization over the library for Helen?
A. Yes. Grady and I signed a small piece of paper, which gave Helen the ability to take care of the library.
Q. Should anything -- in what event?
A. In any time.
Q. I see. All right.
A. She was supposed to be able to take care of it from the start.
Q. Did Helen have particular expertise with books?
A. A lot of expertise.
Q. Hod did you know that?
A. Because she was publishing Crowley material.
Q. By "publishing," you mean writing or printing, for instance --
A. Publishing, printing what Crowley had written.
Q. Did she sell any of the books that we talked about [241] previously?
A. Yes. She sold a few. It says on that paper just how many.
Q. I see. And what was done with the proceeds from her sales?
A. They went to repay me for my large expenses for rescuing the materials.
Q. Did you ever recoup the $2,000, or whatever you testified to?
A. No, not the whole.
Q. Are you saying you did not sell more books in excess of --
A. There -- we stopped selling after awhile, and I -- money was still owing me when we stopped.
Q. I see. Is there still money owing you on this?
A. Yes.
Q. How long had you planned to keep the library in storage?
A. Until the OTO could pay for it.
Q. Okay. I'd like to show you Exhibit No. 123 and ask you about it. Do you recognize that?
A. Yes. This is a letter form me to Mr. Motta of December 1, 1977.
Q. Would you just read the portion of the second paragraph that's been underlined? [page 242]
A. The second paragraph?
Q. Yes.
A. "You have done very good things" --
Q. No, not that one.
"Would you like to" --
A. "Would you like to have returned
to you your correspondence with
Karl Germer?"
Q. Did you ever hear anything from Mr. Motta in response to your letter?
A. No.
Q. Thank you.
I'd like to read to you a few portions from some books that Mr. Motta has published --
A. Yes.
Q. -- in which he's talking about a number of plaintiffs, including yourself. Quote:
"The following individuals were at
some time associated with either A.'.A.'.
or the OTO or if not, publicly
claimed such association. They were
either lying or have been expelled
from the OTO or lost contact with
the A.'.A.'. for conduct unbecoming."
Have you ever been expelled from the OTO? [page 243]
A. No.
Q. Have you ever lost contact with A.'.A.'. for conduct unbecoming?
A. No.
Q. Quote:
"Phyllis McMurtry aka Phyllis Wade
and Phyllis Seckler once a bona fide
neophyte of the A.'.A.'. on reaching the
vision of the Holy Guardian Angel
became obsessed with the delusions
that she had become an Adeptus
Minor" ...
can you explain what that means, tell us what that means?
A. When you have the vision of the Holy Guardian Angel --
Q. (Indicating.)
A. Yes.
Karl Germer had the vision of the Holy Guardian Angel and was immediately made Adeptus Minor by Crowley.
I never claimed to be Adeptus Minor. I had the vision; I claimed nothing.
Q. It continues:
..."and was accused by Mrs. [page 244]
Karl Johannes Germer of sending a
gang let by her own children to
assault and rob Mrs. Germer's
person and residence," ...
Were you ever, to your knowledge, accused by Mrs. Germer of sending a gang to rob and assault her?
A. I don't remember that she accused me. She accused my daughter.
Q. ..."has misappropriated Thelemic
property" --
Have you ever, to your knowledge, misappropriated property?
A. No. I'm a Ninth Degree member. I have right to assist --
Q. and --
A. -- in conservation.
Q. And it goes on:
-- "and misrepresented herself as
an OTO Lodge Master."
Have you ever done that?
A. I am a Lodge Master.
Q. So you're not misrepresenting that you are one?
A. No.
Q. Quote:
"Although I have said that material [page 245]
put out {SIC sb. "put out by" -weh} thieves like Regardie,
McMurtry, Helen Smith is suspect."
Are you a thief who has put out material?
A. No.
MR. MITTEL: Objection. That is compound.
BY MR. MacKENZIE:
Q. Are you a thief?
A. No.
Q. Do you know if Grady McMurtry ever allowed Sascha Germer to die slowly of malnutrition?
A. He did not.
Q. What kind of reactions did you have on hearing of this?
A. On what?
Q. Your reactions when you first became aware of these quotes.
A. I was upset.
Q. When you say "upset," what do you mean?
A. Well, the whole thing was such a fabrication that i don't see why anyone should go to print with such wrong information or made-up information.
Q. Did you personally have any sort of a physical reaction?
A. I always have a bad physical reaction when reading Motta's comments like that. [page 246]
Q. What kind of reaction do you get?
A. Sick to the stomach.
Q. Do these quotations embarrass you?
MR. MITTEL: Objection; leading.
THE COURT: Overruled.
THE WITNESS: It's embarrassing to the work I'm doing.
BY MR. MacKENZIE:
Q. And why is that?
A. Because I'm the founder and director of the College of Thelema. I am the publisher of "In the Continuum." These have -- both of these have quite a reputation.
And if that -- Motta's comments like that are not helpful to what I'm doing; quite the contrary.
Q. In light of you association as Mr. McMurtry's one-time spouse, did you have any personal reactions to having him being accused of allowing Sascha Germer to die slowly of malnutrition?
A. Yes.
MR. MITTEL: Objection. I don't think there's any cause of action for defamation of his spouse. I think it's irrelevant.
MR. MacKENZIE: I think that's by association, Your Honor. If you're a member of a group that's been libeled, in terms it's important. [page 247]
THE COURT: Libel is directed to Regardie, McMurtry and Helen Smith at large, if I understand the point.
MR. MacKENZIE: But it's her ex-spouse who's being accused of this.
THE COURT: No, I don't think that's competent.
MR. MITTEL: Your Honor, --
MR. MacKENZIE: All right, Your Honor.
THE COURT: Mrs. Seckler is not a plaintiff here, is she?
MR. MacKENZIE: Yes, she is.
THE COURT: I beg your pardon. There was some name stricken.
MR. MacKENZIE: Yes. Dr,. Regardie.
THE COURT: Dr. Regardie?
MR. MacKENZIE: That's correct, Your Honor.
THE COURT: I'm sorry. I had the idea the name Seckler was stricken off. I'm sorry.
BY MR. MacKENZIE:
Q. did you discuss Karl Germer's death with Sascha Germer?
A. Yes. I went there immediately upon receiving her letter. I took a day off from school and went to talk with her and to help her. [page 248]
Q. And was there -- did you discuss telling people -- the issue of whether to tell people about the death?
A. I informed her that my intuition was not to tell the people in Southern California. We discussed that a letter must be written to Mr. Motta. We discussed the people all through Europe that she needed to contact>
Q. And you stated earlier the reason Mr. McMurtry did not get a letter was because you did not have his address?
A. That's right.
Q. One final question: Can you describe the capacity in which you feel you holed the library?
A. As a conservator for the OTO.
Q. I'd like you to take a look at Plaintiffs' Exhibit No,. 3 and tell me if you recognize this?
A. Oh yes. I recognize this?
Q. Is that a letter that you received?
A. Yes, I received this.
It's a letter to me from Malcom Mills of Abracadabra in New York March 16, 1979.
Q. Had you been in contact with Mr. Mills?
A. I can't remember. I might have sent him a business letter.
Q. Now, that letter states that they've decided to cut the Thelemic publishing titles from their mail order [page 249] catalog.
A. Oh, yes.
Q. Is there any reason why he would have sent that letter to you?
MR. MITTEL: Objection; no foundation.
THE WITNESS: I have no idea.
THE COURT: She says she doesn't know.
MR. MacKENZIE: No further questions.
Thank you.
THE COURT: We'll take a recess at this time until 1:30 p.m.
(The luncheon recess was taken at 12:15 until 1:30 p.m. of the same day.)
This is an electronic copy of the McMurtry vs. S.O.T.O. Trial Transcript, made for purposes of analysis and study.
Entered by Bill Heidrick, Grand Treasurer General O.T.O.
Notes: Original transcript pages in square brackets: []
Notes and corrections in curly brackets: {}
with source indicated:
Heidrick corrections & notes: { -weh}
Plaintiff formal corrections: { -pla}
Defendant formal corrections: { -def}
abbreviations used to signify alternative:
"should be" = sb.
"may be" = mb.
abbreviations used to signify transcript confidence:
"doubtful or unknown" = ?
"highly questionable" = ?!
"Thus in transcript" = SIC
"Let it Stand (no change to original) =STET
Regarding evidence received formally, there appears to be a lapse in the manner of cross-reference used by the court reporter. Some evidence appears on the face of The Court's statements to have been accepted in batches, and these cross-references are not generally tabulated by the reporter. In addition, some single action receivings in evidence may have been similarly over-looked. Evidence is therefore to be found as received through an examination of the entire text of the several volumes of this Trial Transcript, and through a close reading of the decisions of The Court in the progress from page to page of this Transcript.
This is one of four files of the transcript.
This file covers pages 250 through 496
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE CHARLES A. LEGGE, JUDGE
Grady McMurtry, William E. Heidrick, Phyllis Seckler, Helen Parsons Smith, William Breeze, Francis I. Regardie, James Wasserman, and Kenneth Anger, individuals, Ordo Templi Orientis, a corporation, and Thelema Publications, a business entity,
Plaintiffs,
vs.
Society Ordo Templi Orientis, a corporation, Thelema Publishing Company, a corporation, Marcello Ramos Motta, an individual, and Does I through X, inclusive,
Defendants.
CIVIL NO. C-83-5434
VOLUME II
Afternoon Session
PAGES 250 - 373
REPORTER'S TRANSCRIPT OF PROCEEDINGS OF COURT TRIAL
Tuesday, May 14, 1985
450 Golden Gate Avenue
San Francisco, CAlifornia 94102
REPORTED BY:
Nancy J. Palmer
[page 250]
Tuesday, May 14, 1985 1:30 o'clock
SECOND DAY - AFTERNOON SESSION
THE COURT: Would you come forward, Mrs. Seckler, and take the witness stand, please.
PHYLLIS SECKLER,
having been previously sworn, resumed the witness stand, was examined and testified further as is hereinafter set forth.
THE COURT: You may proceed.
MR. MITTEL: Good afternoon, Mrs. Seckler.
THE WITNESS: Good afternoon.
CROSS-EXAMINATION
BY MR. MITTEL:
Q. This morning you were talking on one point about bringing the library back from Calaveras County. Do you remember that?
A. Yes.
Q. All right. How long -- how many days did it take from the time you got the Court Order until you had all the library in your house?
A. Approximately a week, but I can't give you the exact date.
Q. So that would have made the end of July, the [page 251] beginning of August.
A. Approximately.
Q. And do I also understand that Mr. McMurtry then spend a few days during that period or right after going through the material?
A. As soon as we got it into the Dublin house, Mr. McMurtry spent approximately two -- it might have been three -- days going through the material.
Q. So he had finished doing that certainly by the end of the first week in August?
A. Yes, I think that is correct.
Q. And then as soon as he left, you took the library and put it in Public Storage, or whatever that place is called?
A. Public Storage, yes.
Q. How soon after he had finished did you do that?
A. The next day.
Q. And why did you do that?
A. Because I was frightened.
Q. Frightened of what?
A. Of robberies at my personal home.
Q. Now, you had never been robbed, had you?
A. I have never been robbed in my life. But I didn't want to go through what Sascha went through.
Q. And when you took the material to Public Storage, [page 252] what happened?
A. I took a box out every once in awhile --
Q. No. I mean when you got there the first time that --
A. I just simply paid the bill and got the storage place, put it all away.
Q. Did you sign the lease with them?
A. Yes, I did.
Q. And did you do that the first day you were there?
A. Of course.
Q. And you're certain that you did all this because you were worried as soon as Mr. McMurtry had finished.
A. Yes.
MR. MITTEL: Your Honor, I have come -- a new set of exhibits, 68-B and 68-C.
THE COURT: Have these been marked previously?
MR. MITTEL: No, they have no, so ...
THE COURT: They are 68 what?
MR. MITTEL: B and C.
THE COURT: Okay.
MR. MITTEL: Ant they are each dated April 26th, 1977.
(Two documents, each dated April 26, 1977 were marked Defendants Exhibits 68-B and [page 253] 68-C for identification.)
BY MR. MITTEL:
Q. Now, Ms. Seckler, I'd like you to take a look at Plaintiffs' Exhibit 68-C -- I mean Defendants' Exhibit 68-C and 68-B, for a moment, if you would, and familiarize yourself with them.
A. (Witness complies.)
All right. I have seen these.
MR. MacKENZIE: Your Honor, I would object at this time. I've never seen these documents before and the defendants have never mentioned them in any of their supplemental list or initial list of exhibits.
MR. MITTEL: These are impeachment documents, Your Honor. Under the local rules we're entitled to not list them, not offer them. They were only produced something in the last month or so, in any event, and they were produced by the plaintiffs.
MR. MacKENZIE: Your Honor, I --
THE COURT: I think they're admissible.
BY MR. MITTEL:
Q. Miss Seckler, let me also show you the original of what is Plaintiffs' -- Defendants' Exhibit 68-C so you can see the full date.
Would you read the top line of Defendants' 68-C, if you would, please? [page 254]
A. Right here (indicating)?
Q. Yes.
A. "This lease is executed in duplicate
on the 26th Day of April by and
between Livermore Storage Partners,
Limited, 836 Portola Avenue,
Livermore, California 94550 'Landlord'
and Phyllis Evelynina McMurtry."
Q. Is there a year date after April 26th?
A. Oh, sorry. 1977.
Q. And at the bottom of that document does your signature appear?
A. Yes.
Q. Is that a copy of the lease that you executed with Public Storage for the library that we have been talking about?
A. Yes.
Q. Now, would you also direct your attention to Exhibit 68-B and to the fourth line down, maybe two inches in from the righthand margin --
A. 4-26-77.
Q. And that says "Date requested"; is that correct? Date leased?
A. Yes, that's the date.
Q. So that's the date you started your lease? [page 255] That's the date --
A. No. I told you the storage company changed hands.
Q. Ans so it's you testimony that this is not the first date that you took these materials to storage?
A. That's right. I took these materials to storage in August of '76.
MR. MITTEL: Before I forget, defendants offer 68-B and 68-C, Your Honor.
THE COURT: They may be admitted.
(Defendants' Exhibits 68-B and 68-C previously marked for identification were received in evidence.)
BY MR. MITTEL:
Q. Did you have any other documents from the storage company, either storage company?
A. It was the same place, but different people running it. I don't remember.
Q. Do you -- how did you pay for the storage.
A. Sometimes by cash and sometimes by check.
Q. Did you get a receipt when you paid by cash?
A. Yes.
Q. Let me show you Defendant's Exhibit 70 and ask you to look at that and tell me if that is every check that you used to pay for the storage box?
A. Some of these dates are not clear, but it seems to [page 256] be every check. It starts with August 11, 19 -- no, that's not all.
Q. Look at the bottom check on the first page of that document, if you would, please?
A. Okay. Let's see. The bottom check?
Q. On the first page of that document.
A. Okay. It says April 26, 1977.
Q. That's the first check in that series of checks, is it not?
A. No. I mean with this -- this particular storage company, after they changed hands, it was the first one they got under the new management.
Q. In the course of this litigation, you've been asked to produce all of the documents relating to your storage of the library and Public Storage; is that right?
A. Yes.
Q. And did you do that?
A. I couldn't. These things were taken from me, because I stored them with the materials.
Q. How is it they -- let me withdraw that question.
You're saying that the material relating to the first storage company was stored with the materials?
A. I don't remember.
Q. But you don't have it?
A. I don't have it. [page 257]
Q. And you are unable to produce it?
A. I am unable to produce it.
Q. But you did have the material relating to the second storage company?
A. Some of it.
Q. The lease?
A. I don't have -- I didn't have that personally.
Q. Where was it?
A. I don't remember.
Q. Did you locate these documents in order that they could be produced during this litigation?
A. No.
Q. Who did?
A. I don't know.
Q. Do you remember the name of the company before it became Public Storage?
A. Public Storage was written on the outside buildings. It kept the same name.
MR. MacKENZIE: Your Honor, may I object to this line of questioning, because it really is going simply to the issue of whether there was a breach of duty in 1977, or thereabouts.
And I still contend that this has been barred by the Statute of Limitations. And if there is no action there then there is no purpose in this whole [page 258] thing. It's irrelevant.
THE COURT: Well, I'm not prepared to rule on that issue at the moment.
What is the relevancy --
MR. MITTEL: Well, the relevancy is that you've just --
THE COURT: -- between the '76 and '77, I realize it takes place part in '76 and the documents you're reviewing now are in '77, but how is that material --
MR. MITTEL: It's only material to impeach her. And the only reason I'm continuing to explore it is because I'm surprised at her testimony that she only has one set of documents, but not the other, and that they changed identities and that this --
THE COURT: Okay.
MR. MITTEL: Let me just stop it right there.
THE COURT: Okay.
BY MR. MITTEL:
Q. The rituals of the Ordo Templi Orientis are supposed to be kept secret; is that correct?
A. That is true, until Francis King published them in England.
Q. And that was sometime around 1973; is that right? [page 259]
A. Approximately.
Q. And would you have discussed those rituals with anybody who was not a member before 1973?
A. I don't think I did.
Q. Did you ever complain to anybody that the Ninth Degree ritual was unfair to women, too favorably disposed to men?
A. I have never made comments like that that I know of.
Q. Not even to another member of the Ordo Templi Orientis?
A. Not that I know of.
Q. Is it possible that you've forgotten?
A. I can forget anything. So could anyone.
Q. Is it possible, for instance, that you spoke with Mr. Motta about that in 1957 when he was in California?
A. I don't remember.
Q. You testified this morning about Mrs. Germer and some of the things that she said to you and did --
A. Yes.
Q. -- when you were visiting with her?
A. Yes.
Q. Talking about bugging the wall?
A. Yes.
Q. When was that conversation? [page 260]
A. It was right after Karl's death.
Q. And she was somebody that you were fairly close with?
A. I knew her, yes, because she was karl's wife.
Q. Have you ever had other friends of acquaintances that have had similar kinds of problems or illnesses of kind?
A. With what?
Q. Of anything that was serious.
A. What was the question again?
Q. I said: Have you ever had friends, acquaintances that were seriously ill?
A. How, physically or mentally?
Q. Either way.
A. Karl was a little ill on the same subject.
Q. Have any of your other friends ever been seriously ill.
A. Mentally?
Q. Either way, mentally or physically.
A. I can't think of anyone else who had the same mental problems as Karl and Sascha had.
Q. Let me just ask you a question that you can answer yes or no.
Have you ever had a friend with a serious physical illness? [page 261]
A. Yes.
Q. You said that when you got the letter from -- or the telegram, I believe it was, from Mrs. Germer accusing your daughter of the theft in 1967 that you were shocked?
A. Yes.
Q. And that you immediately sent back a telegram saying it couldn't have been possible; is that right?
A. That's right.
Q. Is that your normal response when you are shocked about something is to get back in touch with the person who causes the shock?
A. What do you mean by "normal"?
Q. Is that what you would normally do?
A. What do you mean by "normal"? This was an abnormal situation.
Q. Now, what I means is when you are shocked about something, do you normally respond promptly?
A. Not always.
Q. You said that it was not possible for your daughter Stella whom Mrs. Germer had accused to have committed the burglary?
A. That's right.
Q. Were any of you other children interested in Thelema? [page 262]
A. None.
Q. Did you not write to Mr. Motta at one point and tell him that your son Paul was interested in him, an admirer of his and interested in Thelema?
A. At that time he was.
Q. And you have another daughter as well?
A. Yes.
Q. Was she also at that time interested in Thelema?
A. No.
Q. So it was only your son Paul who was?
A. That's right.
Q. And where did he live at that point in time?
MR. MacKENZIE: Your Honor, I'm going to object to this. I think it's -- it's not even impeachment. It's really attacking or attempting to impugn the children of Mrs. Seckler. And I don't think that needs to reflect on her.
THE COURT: Well, I have a hard time seeing the relevancy, too, but you raised the question of the children's possible involvement in the attempted theft and I think --
MR. MacKENZIE: Sascha has --
THE COURT: -- it's also proper cross-examination.
He's entitled to a certain degree of latitude [page 263] to explore the subject.
MR. MacKENZIE: I agree with that, Your Honor, but it was Sascha who directed it specifically towards one daughter.
THE COURT: But I don't think he's necessarily limited to that on cross-examination. I think he can come at it from different angles if he wants to.
BY MR. MITTEL:
Q. The question --
A. I think it was San Jose. I can't remember.
Q. And has he ever lived in Berkeley?
A. Oh, yes. My son lived in Berkeley at one time.
Q. When did he live in Berkeley?
A. I can't remember.
Q. During the period 1979 to 1985?
A. I can't remember.
Q. Now about either of your daughters; did they live with you then, either of them, in 1967?
A. No. They were both married.
Q. All right. And have either of them lived in Berkeley since 1979?
A. Yes.
Q. Whereabouts?
A. Close to the University. They were students. [page 264]
Q. Did any of your children -- let me withdraw that question.
Are you familiar with a man by the name of Tom Whitmore?
A. No.
Q. Do you know here he lived?
A. No.
Q. Do you know here he lives now?
A. NO.
Q. Since 1979 have any of your children lived in Oakland, very near the Berkeley border on East 66th Street?
A. Yes.
Q. Which one?
A. My son.
Q. When did he live there?
A. I don't remember.
Q. Where does your son live now?
A. San Jose.
Q. What's his address?
MR. MacKENZIE: Objection, Your Honor. I don't see the relevancy of that.
MR. MITTEL: Your Honor, the relevance is as follows;
In May of 1984 a man by the name of Tom [page 265] Whitmore, whose deposition we took two weeks ago, moved into a house on East 66th Street in Oakland.
He reports by a document which is Defendants' Exhibit 78 that he discovered in his basement a box containing a significant amount of material that, at least from reading the document and listening to him testify at his deposition, appears to have come from this library that we're talking about.
THE COURT: You may ask questions about that.
THE WITNESS: My son didn't live in Oakland at that time.
MR. MITTEL: And I want to subpoena this son and get him in here.
BY MR. MITTEL:
Q. What's his address?
A. I don't know unless I look at my address book.
Q. Do you have your address book with you?
A. In my purse down there.
Q. Let me get your purse.
(Handing purse to the witness.)
A. All right. His name is Paul Stuart, S-t-u-a-r-t. 825 East William, San Jose, California 95116.
May I explain how those two boxes got to Berkeley? [page 266]
MR. MITTEL: Give me one more moment and I will ask you that.
THE COURT: Well, I'm sure if Mr. Mittel doesn't cover it, Mr. MacKenzie will.
BY MR. MITTEL:
Q. Well, what's his phone number, please?
A. Oh. 408, area, 293-6368.
By the time all of this took place, my son had lost interest in Thelema.
Q. Let's be a little more specific on dates, first of all.
When did he live on East 66th Street?
A. I don't remember -- he didn't live on that street.
Q. He occupied a house on East 66th Street, did he not?
A. No, I don't think so.
Q. Well, you testified a moment ago that he did.
A. I -- you said the border between Oakland and Berkeley. He was living in Oakland quite early on.
Q. But you do know how the boxes got to Mr. Whitmore's house?
A. I have a very good suspicion of it, --
Q. Why don't you tell me --
A. but I can't prove it. You'd have to ask Mr. Gualdoni. [page 267]
Q. Why don't you tell me what your suspicion is?
A. All right. When Helen and I first discovered Sascha's death on that particular day, Mr. Johnson, the Deputy Coroner, told us that Mr. Gualdoni had removed two boxes of materials from the Germer home.
Later that same day when we met Mr. Gualdoni, I asked him about this, and he denied it.
Those two boxes were then sold when Mr. Gualdoni had the permission of his jurisdiction to sell whatever he pleased to make up any expenses, and well, minus profits.
Q. Were you present at the sale?
A. No.
Q. Did you know --
A. But somebody else bought it and --
Q. Just answer my questions as I ask them, please.
A. Uh-huh.
Q. Do you know anybody who was present at the sale?
A. I think we might have a lead.
Q. Tell me who you think was present at the sale?
A. Somebody sold Bill Heidrick something that was obviously from those boxes.
Q. What's the person's name whom you think --
A. I don't know.
Q. From whom did you hear about this sale? [page 268]
A. Goodness, I don't remember. I don't remember. But I knew it was going to take place because Mr. Gualdoni said so.
He took the typewriters from us, and he told us that he was going to sell them.
Q. Did Mr. Gualdoni tell you that he had two additional boxes of literary material?
A. He refused to confirm that he had these.
Q. Mr. Johnson was the name of the Assistant Coroner?
A. Yes.
Q. What was his first name?
A. I don't know.
Q. You were very interested in the Crowley and Germer library, were you not?
A. Yes.
Q. Interested enough to have spent $2,000 to hire a lawyer and go to Court in Calaveras County?
A. That's right.
Q. And interested enough to then spend a good bit of your own money keeping it in the Public Storage?
A. That's right.
Q. But not interested enough to go to the sale and see if you could get the other two boxes?
A. Nobody told me when the sale would be. I only heard about it later. [page 269]
Q. From Mr. Johnson?
A. No.
Q. Mr. Johnson --
A. Other than the fact that Mr. Heidrick was offered something for sale.
Q. You never asked Mr. Gualdoni if he was going to sell any of the literary material?
A. No.
Q. Didn't you just tell me that you told him that Mr. Johnson had told you that he had two boxes of literary material and that his response was to deny it?
A. I didn't tell him Mr. Johnson had told us that. I asked him outright.
Q. And he said --
A. "No."
Q. And you believed him?
A. I don't know what to believe.
Q. You had a lawyer, didn't you?
A. Later.
Q. You had a lawyer to go to the Probate Court and get the library, didn't you?
A. Yes.
Q. Right then?
A. Not at that moment.
Q. Did you discuss that matter with your lawyer, the [page 270] other two boxes?
A. No. There was too much else on my mind.
Q. Tell me again if you remember when Mr. Stuart, that's your son, lived in East Oakland.
A. I don't remember.
Q. Tell me again --
A. But it was much before we ever rescued these things.
Q. Tell me again if you know what his address was when he lived there?
A. I don't know.
Q. Is it in your book, perhaps?
A. No.
Q. Do you erase old addresses before putting new addresses in?
A. I have a new book every once in a while.
Q. Would you mind taking the book out and looking to make sure that it's not in there.
A. I'll do it again.
(Perusing small book.)
It's not here; this is a new book.
Q. I think you mentioned that in 1969 after Mr. McMurtry came back to California, you and he and Mildred Burlingame had some meetings?
A. Yes. [page 271]
Q. I think you said that you were the three remaining members of Agape Lodge?
A. That's right.
Q. Wasn't Mrs. Smith, who's also a plaintiff here, a member of Agape Lodge?
A. Yes.
Q. Why wasn't she at the meetings?
A. I didn't have her address at first, and she lived in Southern California.
Q. You also testified this morning that the reason that you treated Mr. McMurtry as -- well, why don't you explain to me again why you thought Mr. McMurtry had some special position in the Ordo Templi Orientis as of 1969?
A. Because of the Crowley letters of authorization.
Q. And which letters are those?
A. I don't have the exact date. You will just have to show them to me, and I'll tell you.
Q. Let me show you Plaintiffs' 20 and ask you if that's one of them?
A. This is one of them.
Q. Is there another one that looks just like that?
A. They would look like Crowley's handwriting, so I don't understand you question.
Q. Is Defendant's 8 another one of those letters of authorization about what you're speaking? [page 272]
A. This is the same letter.
Q. What about Defendants' 11?
A. This one of the letters of authorization.
Q. Now, are there more letters than just these two?
A. I think the letters that refer to him as Caliph are also to be considered as authorization.
Q. Let me show you Defendants' Exhibit 5, which is also a Plaintiffs' Exhibit and ask you if that's one of the letters of authorization, because it refers to Mr. McMurtry as the Caliph?
A. Yes, I consider this as one of the letters of authorization.
Q. Now, where in that letter that you're looking at right now is there some indication that Mr. McMurtry is to have a position of authority?
A. "Frater Saturnus is, of course,
the natural Caliph, but there
are many details concerning the
actual policy or working which
hit his blind spots. In any
case, he can only be a stop gap
because of his age. I have to
look for his successor."
Q. Does that say that Mr. McMurtry is going to be the successor? [page 273]
A. To my mind, it does.
Q. Is there anything --
A. It was addressed to Grady McMurtry, --
Q. Is --
A. -- and that's what he's talking about.
Q. Is there anything in the "Blue Equinox" that talks about the Caliph?
A. No, there isn't.
Q. Let me show you Plaintiffs' Exhibit 21. Let me ask you if that's another one of the letters that you're relying on?
A. Yes. I consider this as supportive evidence for the letters of responsibility --
Q. And those are the --
A. -- that Grady McMurtry was to take up.
Q. And those are the two letters dated 1946 that I showed you first, the letters of responsibility?
A. Yes.
Q. And what does this say, this letter that you are looking at now, which is Plaintiffs' Exhibit 1 {SIC sb. "21" -def}?
A. "I would tell you why in strict
confidence in the event of my
death Frater Saturnus is, of
course, my successor. But
after his death, the terrible [page 274]
burden and responsibility might
very easily fall upon your
shoulders."
Q. All right. Now, Mr. Crowley is not saying that he is appointing Mr. McMurtry. He is only suggesting that that may happen; is that correct?
A. I take this as supportive evidence for the first two letters you've showed me. They all work together.
Q. Supportive of the authority that Mr. McMurtry is given in the first two letters --
A. Yes.
Q. -- and nothing more?
And nothing more than what's in those first two letters?
A. What do you mean, "nothing more"? Explain, please.
Q. You said that you take this letter that you looking at, Plaintiffs' 21, as being supportive of the authority that Mr. McMurtry was given in the first two letters.
A. That's right.
Q. And what I asked you was: Do you mean supportive of the authority that's given there and no further authority, or do you mean supportive of greater authority that he's given there?
A. Supportive of any authority Mr. McMurtry might be able to wield in the future. [page 275]
Q. And what language in this letter tells you that mr..McMurtry may have authority in the future?
A. "After his death, the terrible
burden or responsibility may
very well easily fall upon your
shoulders."
Q. Now, let me show you Defendants' Exhibit 16.
Let me ask you one other question first: Plaintiffs' Exhibit 21, what's the date on that?
A. 17th of June 1947.
Q. All right. Now, let me show you Defendants' Exhibit 16, which is a letter to Frederic Mellinger from Mr. Crowley. What's the date, first of all, please?
A. 15th of July 1947.
Q. That's after this letter that you were just looking at addressed to Mr. McMurtry; is that correct?
A. Yes.
Q. Would you now turn to the second page of what you were looking at and read the yellow portion to the Court?
A. "After Frater Saturnus and myself
have moved on into the next stage,
you may"--underlined--"find
yourself saddled with the whole
responsibility of carrying on the [page 276]
work of the Order."
Q. Well, that's almost exactly the same words --
A. No. There's the word "may" in here.
Q. Is the word "may" different that the word "might"?
A. Yes. But I don't have a dictionary.
Q. The word "might" appears in Mr. Crowley's letter, does it not?
A. Show it to me again.
THE COURT: Well, Counsel, what the words mean is really my decision and not the witness', so I don't think it's probative to go ahead with the examination on it.
BY MR. MITTEL:
Q. You didn't know about the letters to Mr. Mellinger when you were talking with Mr. McMurtry in 1969?
A. No.
Q. You were talking about the payment of dues to the Ordo Templi Orientis; you said that that didn't go on during Mr. Germer's administration; is that right?
A. Some people donated money; it was not regular dues.
Q. There is an obligation set out in the "Blue Equinox" for members to pay dues, is there not?
A. Yes.
Q. I think you testified this morning that you wrote some to Mr. Motta in the early 1960s. [page 277]
A. 1962 when Karl died.
Q. Why did you write then?
A. Because Sascha asked me to.
Q. Did you not testify that you and she discussed to whom letters should be sent about Karl's death?
A. Yes, we discussed the matter.
Q. And you suggested to here that the people in Southern California shouldn't be notified?
A. That's correct.
Q. Why did you suggest that?
A. Pure intuition.
Q. What was the basis of your intuition?
A. It was proven to be correct later in 1967 when the people from Southern California came up and robbed Sascha of what was in the library.
Q. And you also suggested to Sascha that the people in Europe should be told.
A. She wanted to inform the people in Europe. I knew nothing of them. I was quite in accord with her desires.
Q. And you also suggested to here that Mr. Motta should be notified?
A. No, that was her idea.
Q. And why did she want to notify him?
A. Because he was a student of Karl's. [page 278]
Q. This morning you testified about Plaintiff' Exhibit 18 which is a letter that you sent to Mr. Heidrick identifying potential suspects in the theft.
A. Yes.
Q. I think you said that the people listed in the top portion of the letter were recipients of "In the Continuum?"
A. Yes.
Q. Were there other recipients of "In the Continuum"?
A. This particular issue, the one that explained the rescue of the library, those were the only recipients.
Q. You testified that you heard a tape or some tapes of a Supreme Council meeting at which the suspicion that you had been involved in the 1979 theft was discussed?
A. NO, that's not what I heard on the tapes.
Q. But you did hear some tapes?
A. I heard some tapes.
Q. And what was the subject of those tapes?
A. Whether I was to remain in the OTO or not.
Q. And what was the basis for expelling you from the OTO if there was one?
A. Anger.
Q. Anger about what?
A. I'm very a strong-minded person.
Q. And whoever was talking was angry about your strong [page 279] mind?
A. Yes.
Q. Who was talking?
A. Grady McMurtry and Bill Heidrick.
Q. And what you were showing a strong mind about was not turning the library over to them?
A. By that time when I heard these tapes the library had been stolen from storage.
Q. But when the tapes were being made?
A. That was after the theft from storage.
Q. So the tapes were made after the theft from storage?
A. Yes.
Q. And where are those tapes now?
A. I have no idea.
Q. Where did you hear them?
A. I heard them in my home.
Q. Who gave them to you?
A. The then Grand Secretary-General.
I did a little secretarial work with them.
Q. Who was the then Grand Secretary-General?
A. James Graeb.
Q. Can you spell that, please?
A. James, J-a-m-e-s, Graeb, G-r-a-e-b.
Q. Thank you. [page 280]
A. I worked up the minutes from them.
Q. Is Mr. Graeb still a member of the Ordo Templi Orientis?
A. Yes, he is.
Q. You testified, I think, that Helen -- or that immediately after the theft in April of 1979, you tried to call Helen Parsons Smith --
A. Yes.
Q. -- and you couldn't do that because you couldn't find her?
A. No.
Q. Do you know where she was?
A. No.
Q. Now long did it take you to track her down?
A. Several months, but I don't remember.
Q. After you tracked her down, did you ask here about the theft?
A. Yes.
Q. What did she say?
A. I can't remember.
Q. Did she deny doing it?
A. I can't remember.
Q. Did she admit to doing it?
A. If I can't remember, how could I say?
I can't remember what she said. [page 281]
Q. She was the only one who had a key besides yourself?
A. That's right.
Q. This morning you testified about Plaintiff's Exhibit 123. Do you see that?
A. Yes. This is a letter from me to Mr. MOtta, December 1, 1977.
Q. How did you happen to have copies of Mr. Motta's correspondence?
A. It was in the library. It was in the Archives.
Q. And at that point in time when you wrote this letter, you were in the process of indexing the Archives?
A. Yes.
Q. You prepared an index at some point, which is some 21 pages long, I think. I'm not sure.
A. That's right.
Q. And you found Mr. Motta's letters in there?
A. Yes.
Q. Were any of them missing?
A. I don't know.
Q. And when you had them at home you offered to send him copies of them?
A. I offered to send him the whole bunch that I had.
Q. And when he -- did he write back in response to [page 282] this letter?
A. No.
Q. What did you do with the whole bunch?
A. The remained in the Archives.
Q. I may have misunderstood you. I think you said you always had a bad physical reaction to Mr. Motta's comments?
A. Yes.
Q. Regardless of what he said?
A. He's never said anything pleasant in print that is in books.
Q. What did you do when you first read the material about which you're unhappy?
A. Which material are you referring to?
Q. The material that's listed in the Complaint, the statements in the Complaint that you believe are untrue?
A. Printed -- printed material in Motta's books, is that what you're referring to?
Q. Yes, ma'am.
A. What did I do, did you say?
Q. Yes, ma'am.
A. I can't remember what I did.
MR. MITTEL: I'm going to ask the reporter to read back a question that you were asked this morning and the answer. [page 282]
(The reporter read the record as follows:
"BY MR. MacKENZIE:
Q. One final question: Can you describe
the capacity in which you feel you hold
the library?
A. As a conservator for the OTO.
Q. I'd like you to take a look at
Plaintiff's Exhibit No. 3 and tell me
if you recognize this.")
MR. MITTEL: That's it. Thank you.
BY MR. MITTEL:
Q. Mr. MacKenzie asked you in what capacity you hold the library.
A. As a Ninth Degree conservator for the OTO.
Q. And do all Ninth Degree members have the same rights and responsibilities as respects the library?
A. Yes.
Q. How is it that you hold the library now?
A. How is it what?
Q. How is it that you hold the library right now?
A. I don't hold the library right now. If you're referring to the Crowley-Germer Archives, I told you the Court has seen that those were stolen from Public Storage. I don't hold them.
Q. Have you seen the material in Mr. Heidrick's house?
A. What material?
Q. The documents that relate to Mr. Crowley, Mr. Germer, Mr. Motta, yourself? [page 284]
A. Which documents?
Q. Any of them.
A. That's too wide a question. What do you mean? Can you --
Q. Well, why don't you tell me what, in general terms whether you've ever been -- withdraw that question.
Have you ever been in Mr. Heidrick's house?
A. Yes.
Q. How recently?
A. Maybe about two or three weeks ago.
Q. And while you were there, did you look at any documents?
A. Not at that time?
Q. In the past year, have you looked at any documents in Mr. --
A. Yes.
Q. Are you familiar with generally the amount of documentary material related to Thelema that Mr. Heidrick has in his house?
A. I am familiar with the two boxes that were found in Berkeley. That's all.
Q. And as far as -- it's your testimony that Mr. Heidrick has nothing in his house beyond what was in those two boxes?
A. I don't know. Ask Mr. Heidrick. [page 285]
Q. Is it your testimony that all you've seen in Mr. Heidrick's house are the contents of those two boxes?
A. That's right.
Q. Tell me what was in the two boxes, please?
A. A few letters badly marked by Sascha Germer from me to Karl and Karl to me, and a great many other things that Mr. Gualdoni put together in order to try and find -- if he could find family for Karl or Sascha, who might inherit the house and the materials in it.
Q. This material that Mr. Gualdoni put together, have you ever seen it before?
A. I had never seen it before.
Q. How do you know it was Mr. Gualdoni who put it together?
A. Because that was his job. He mentioned something about trying to find who the inheritors of the estate might be. He told Helen and myself this.
Q. You don't believe that the OHO and the Caliph are the same position, do you?
A. That depends on the future.
Q. Do you believe that mr. McMurtry is the OHO of the Ordo Templi Orientis?
A. The OHO is elected by membership in various countries. We do not yet have that type of membership.
Q. So that it's your opinion that Mr. McMurtry is not [page 286] the OHO; is that right?
A. He can act as a temporary one, because he's doing the administrative work. Nobody else has been doing that but him.
Q. Has Mr. McMurtry ever claimed to be the OHO?
A. I'm not sure.
Q. Do you remember having your deposition taken in 1963 -- '83, I'm sorry, in December here in San Francisco?
A. Yes.
Q. Let me read you some questions that I asked you here on page 18"
"Do you know who the Outer Head of the
OTO is now?
"ANSWER: Three people have claimed it."
THE WITNESS: (Nodding head up and down.)
MR. MITTEL: "Well, tell me who they are.
"Metzger in Switzerland; Grant in
England and McMurtry in the United
States."
THE WITNESS: Yes.
MR. MITTEL: "Question: And do you
have an opinion as to which of those
actually is the Outer Head? [page 287]
"I have no opinion."
THE WITNESS: That's right.
BY MR. MITTEL:
Q. Now, Mr. McMurtry has failed to take care of OTO business, has he not?
A. He has taken care of OTO business quite well. He manages to find excellent people to help the business.
Q. You've criticized him on a number of occasions in the past for his failure to take care of OTO business, haven't you?
A. What are you referring to?
We had a lot of bad feelings. And if you don't produce a particular letter and a particular sentence, I can't answer you.
Q. Well, let me just have the reporter read back the question and you can answer it with a yeas or no, perhaps.
A. All right.
MR. MITTEL: Will you do that, please?
(The reporter read the record as follows:
"QUESTION: You've criticized him on a
number of occasions in the past for his
failure to take care of OTO business, haven't you?
"ANSWER: What are you referring to?"
BY MR. MITTEL:
Q. Can you tell us whether the answer is yes or no? [page 288]
A. No, I can't tell you whether the answer is yes or no, because I don't know what you referred to.
Q. Well, let me again read to you from the deposition. Maybe that will refresh your recollection a little bit.
There was a question that I asked you about an exhibit in which you had referred to serious failures on Grady's part. And after some discussion, I said to you:
"Could you answer the question, please?"
And you said:
"Grady was sick and not taking care of
matters in the Order very well at that
time."
A. I told you --
Q. "I was doing most of it."
Well, --
A. Oh, yes, that was when he was living with me. That's right. I was doing most of it.
Q. Let me go on.
A. That was the first part.
Q. "What was he not doing?
"He wasn't answering questions. I
put on the bulk of the initiations
myself. I wrote the letters; I was
teaching and supporting him. So he [page 289]
just was not fulfilling his
responsibility. That's right."
A. That's what happened.
Q. And there have been other occasions when that's happened as well; is that right?
A. After 1975, when we separated I had certain ideas about what he was or was not doing, but I might have been wrong.
Q. You have heard some testimony about menus, haven't you?
A. Yes.
MR. MITTEL: Give me a moment if you would, please, Your Honor.
THE COURT: Yes, sir.
MR. MITTEL: May I have these marked, please?
BY MR. MITTEL:
Q. Let me just show you a document that's unmarked for the moment. Let me ask you if that's a photocopy of the menus that we're talking about.
A. My memory is very poor on this point.
Q. Do you think they are?
A. It looks like Crowley's handwriting. I say "it looks like."
Q. Do you recollect when you first saw these menus? [page 290]
A. I might have briefly seen them right after we rescued the materials.
Q. Did you also see them while you were cataloging the library after --
A. No.
Q. -- you moved it to Public Storage?
A. No.
Q. Let me now refer you to or at least read to you from your deposition at pages 85 and 87. I asked you this question:
"In doing the work that you
did between 1976 and 1979, and that
refers to cataloging the library,
did you ever come across a series of
personal letters to Mr. Motta?
"Yes, there were a lot of personal
letters from Crowley to him."
A. From Crowley?
Q. "QUESTION: Were any of his menus
in there?
"Yes, there were."
A. Whose menus?
Q. "How come you know that?"
"Were the menus written on" -- you're asking me: [page 291]
"How come you know that?"
A. Uh-huh.
Q. And then I say to you:
"Were the menus written on OTO
paper?
And you said"
"I can't remember that. I can
only remember the menus were all
on cards."
A. All right.
Q. Now, do you remember seeing the menus when you were cataloging the library?
A. They were not present when I was cataloging the library.
Q. So you were not telling the truth during your deposition?
A. I remembered vaguely seeing them, but not when I was cataloging.
Now you know Mr. McMurtry took some materials before I started cataloging.
MR. MacKENZIE: Your Honor, let me ask where he is leading. If this is for impeachment solely, I can understand it.
If it's on the issue of some kind of a conversion or some breach of duty, then I think it's [page 292] irrelevant.
THE COURT: What is the relevancy of the menu cards you refer to?
MR. MITTEL: Well, the menus ultimately will refer -- will - I think will be evidence in a conversation {SIC sb. "conversion" -def} case. Right there they-re only offered to impeach that testimony. It's only offered as far as she's concerned --
THE COURT: The objection is overruled.
BY MR. MITTEL:
Q. Has Mr. Motta been interested -- let me withdraw that question, please.
You said before that Mr. Motta is a trustworthy person, haven't you.
A. When did I say that?
Q. How about December 7th, 1983?
A. In '83? Would you produce the letter, please?
Q. I'm going to read to you again from the deposition. I was reading to you from a letter or asking you some questions about a letter in which you were complaining to Mr. McMurtry that you had written to Mr. Motta.
A. Yes.
Q. And I said:
"What were the things that he
was doing that troubled you?" [page 293]
You said:
"Personal matters.
"And why did you have to share
those with Mr. Motta?"
You said:
"I trusted him."
Do you remember that?
A. Oh, I did, briefly.
Q. Now, the library is a very important part of the whole Thelema, is it not?
A. Yes, it's the Archives.
Q. And Mr. Motta has always been closely connected with, especially with the writing portion of Thelema; isn't that true?
A. I think you'll have to ask Mr. Motta. He has published some Thelemic things.
Q. Well, but I'm asking you and you certainly must have an opinion about that.
A. He began publishing Liber Aleph, which in Karl's mind was a very good thing to be doing.
Q. In your mind, also?
A. Yes.
Q. And since that time, he's continued to do that, hasn't he?
A. He has continued to publish, but unfortunately has [page 294] ruined some of Crowley's writings by throwing parts out and putting in his own.
Q. For instance, did he ruin the Commentaries of Al?
A. Yes, he did.
Q. Before we come back to that, let's go back to something else, then.
I might ask you if Mr. Motta is not the type of person who would be very interested in the library?
A. Yes, he would be interested.
Q. And, in fact, is he not the type of person that you think will be responsible in dealing with the library?
A. At the moment I do not think so.
Q. But you have had that opinion on a number of occasions?
A. Unfortunately, yes.
Q. And that you have written to him and said, "You should be the person to have the library"?
A. I wrote that, but I was entirely mistaken.
Q. You wrote that in 1962, right after Mr. Germer's death?
A. No, I don't remember. You'd have to show the letter and see -- to me.
Q. What about in 1976; did you write that then?
A. Yes. Two weeks before we discovered Sascha was dead, I wrote that. I said "maybe." [page 295]
Q. When did you discover that Sascha was dead?
A. April 1976.
Q. How do you know it was April?
A. It's in my diaries. I'm not sure of the date unless I look at my diary.
Q. Do you have your diaries with you?
A. No, I don't. But I did give --
Q. ARe they in Oroville?
A. They are part of the papers that are part of this trial. I submitted them to my lawyer.
Q. So they're with your lawyer?
A. Yes. Exact dates, discovering of Sascha's death and everything we did afterwards are in those library -- I mean those records, my diary records.
Q. And you're suggesting that you wrote to Mr. Motta before discovering Sascha's death?
A. Yes, I did. About two weeks before that.
Q. Are you certain about that?
A. Huh?
Q. Are you certain about that?
A. Yes.
Q. You have also said on a number of occasions that Mr. Motta has done good things for Thelema, haven't you?
A. I said that once after some of his publishing.
Q. And in particular you said it after he published [page 296] the Commentaries of Al {SIC sb. "AL" -def}, didn't you?
A. Yes.
Q. You said that was a good piece of work, didn't you?
A. I said -- no, I didn't say it was a good piece of work. I said he has done good things.
MR. MacKENZIE: Your Honor, I'd like to object to this line of questioning. If there is a way that Mr. Mittel could provide the documents that the witness could see, because he's talking about letters --
THE WITNESS: Yes.
MR. MacKENZIE: -- that are 15 and 20 years old.
THE WITNESS: That's right.
MR. MacKENZIE: Taking little pieces out of them, and I don't know that --
THE WITNESS: He should --
MR. MacKENZIE: -- there are records --
MR. MITTEL: Your Honor, --
THE COURT: Are they marked in evidence?
MR. MITTEL: All the -- every document --
THE COURT: If they are, then he can read the document in full.
BY MR. MITTEL:
Q. Mr. Germer initiated you into the Ninth Degree, didn't he? [page 297]
A. Yes.
Q. And you received from him no charter, no patent, no warrant, no other report --
A. Nobody did.
Q. Pardon?
A. Nobody received a paper with their name on it. Everybody received Emblems and Modes of Use who became Ninths.
Q. And that's a secret document?
A. That's a secret document.
Q. You haven't produced it here in court?
A. I can't produce it in court. It belongs to the OTO.
Q. And the fact that you have no document from him doesn't invalidate your membership?
A. No, because that's the way it was done when Crowley was alive.
Q. Now, in 1968 when you first wrote to Mr. McMurtry, when he was in Washington, and told him about the burglary at Mrs. Germer's house, you suggested to him that perhaps he had committed the burglary, didn't you?
A. I was writing to everybody suggesting that they might have committed it.
Q. Why did you think that Mr. McMurtry might have committed it? [page 298]
A. I was -- it was a shot in the dark.
Q. And you think that Mr. Heidrick committed the burglary in 1979, don't you?
A. I used to.
Q. When did you stop thinking that?
A. After talking with him.
Q. And when did that take place?
A. Oh, last year sometime.
Q. How long had you known him?
A. Mr. Heidrick?
Q. Yes, Ma'am.
Since 1977 or '78.
Q. And how many times did you talk with him about the burglary after it happened?
A. That would be 1979. I talked with him on the phone quite a few times.
Q. And it wasn't until last year that you spoke with him and you finally were convinced that he hadn't done it?
A. That's right. But then remember I was suspecting everybody within sight.
Q. But you were primarily suspecting him?
A. No, not primarily.
Q. Let me read from page 91 of your deposition?
MR. MacKENZIE: Your Honor, I just don't see [page 299] the relevancy of all of this questioning.
There was testimony in 1977 or, excuse me, Your Honor, in '79. And that's been six years ago now. And I don't know what any of this has -- what this case actually has to do with it.
MR. MITTEL: This is impeachment testimony, Your Honor. It's also impeachment testimony concerning the truthfulness of other witnesses.
MR. MacKENZIE: It's impeachment, Your HOnor, on a point that I think has absolutely no bearing on the case.
THE COURT: Well, I think I would have to hear more evidence before I rule things out as being irrelevant or immaterial. I am going to permit the question.
BY MR. MITTEL:
Q. I asked you on page 91:
"And it was about six months ago
you told Mr. McMurtry that you
suspected Mr. Heidrick?"
You said:
"That's true."
And I asked you:
"Why did you suspect Mr. Heidrick
six months ago?" [page 300]
Now, this was in December of 1983.
A. Um-hum.
Q. Do you remember now why you suspected him?
MR. MacKENZIE: Your Honor, Mr. Motta would like to adjourn for a moment or two.
THE COURT: All right, sure. Let's take a ten-minute recess.
(Brief recess taken.)
THE COURT: You may proceed.
MR. MITTEL: Thank you, Your Honor.
BY MR. MITTEL:
Q. Miss Seckler, do I understand that Mr. McMurtry has taken personal correspondence of yours and never returned it to you?
A. That happened much later.
Q. Much later than when?
A. We kept all of our letters concerning the OTO together in one spot. And -- I've forgotten the year, but it was after 1979, after that time he came to take all of those current or present-day Archives away.
And in it I had a few personal letters.
Q. Any you've asked him for them back and he's never returned them; is that right?
A. That's right.
Q. There was some discussion this morning about an [page 301] Adeptus Minor?
A. Yes.
Q. That's something good, isn't it?
A. It is five equals 6 A.'.A.'.. We're not talking about A.'.A.'.; we're talking about OTO.
Q. I know, but in terms of Thelemic matters, in terms of the A.'.A.'., for instance, to be an Adeptus Minor is to have accomplished something?
A. To have accomplished the knowledge and conversations of the Helen Guardian Angel. {SIC sb. "Holy Guardian Angel" -pla -def}
Q. Mr. McMurtry has caused you serious emotional distress, hasn't it?
A. Naturally.
Q. After you read what Mr. Motta had written about you, you didn't seek any medical treatment, did you?
A. No.
Q. Part of the reasons for Mr. McMurtry's failures as a member of the Ordo Templi Orientis or perhaps even a leader is because he has problems with drugs and alcohol; isn't that true?
A. You'll have to ask Mr. McMurtry.
Q. Haven't you told him that?
A. Did I? Where?
Q. Yes, ma'am.
Well, before I talked with you about where, [page 302] haven't you said that about him?
A. To whom?
Q. To anybody.
A. That's too wide a question.
Q. Well, let me ask you to start by taking a look at Defendants' 69-A, which is a letter from you to Mr. McMurtry. Let me ask you to read the middle paragraph on page 2 to the Court, if you would, please?
A. "An effective leader is so because of
his personal example. What is your
record? You have broken two
instructions of the First Degree.
'I most solemnly promise and swear
that I will not indulge unduly in
any drugs such as alcohol, ether,
opium, hashish or cocaine whereby
my full consciousness and free will
might be impaired.
"'I do most solemnly promise and
swear that I will not allow myself
to fall unduly under the influence
of any person whereby my free will
might be impaired.'
"By the way, what is you 'free
will'? What is your true will? [page 303]
The contents of these letters,
let it be known to all just what
has happened."
Q. So you told Mr. McMurtry that and you told others as well.
A. I told him that in that letter, yes.
Q. And his conduct -- the reason you wrote in this letter is because he was violating the First Degree oath?
A. Yes.
Q. Now, let me show you Defendants' 68-A, which is a letter that you sent to your daughter -- I'm not sure which one; I'm going to ask you -- on November 11, 1976, and ask if you would read, first of all, the material in the bottom paragraph on the first page and then also in the bottom paragraph on the second page.
Before you do that, though, which daughter did you send that letter to?
A. I didn't sent it to her. I gave it to her in a sealed envelope. She didn't know its contents. It was in case I got murdered.
Q. And could you now read the -- which daughter did you give it to? I'm sorry.
A. Lisa.
Q. And could you now read that material, please, that [page 304] I've asked you to.
A. I countered with the fact that he did not look on the other side of the coin, and this was that I had given him money for a room and that he had spent it on drugs. That was $20.
Do you want me to go on with the last part here?
Q. Yes, please. Well, first of all, --
MR. MacKENZIE: I will object to that, Your Honor. I think that that's hearsay.
BY MR. MITTEL:
Q. Let me, first of all, ask you if that $20, does that appear in the letter?
A. No it doesn't.
MR. MITTEL: I move to strike that --
THE WITNESS: And I gave him the money, so I know what it was.
MR. MITTEL: I move to strike that answer as nonresponsive, Your Honor, --
THE COURT: Well, I think the witness can testify about what it is. The answer may stand.
MR. MITTEL: -- which you now turn over and --
THE COURT: The hearsay objection is overruled. The witness is testifying to her own [page 305] communications.
BY MR. MITTEL:
Q. Could you now read the material on the second page of the letter, please?
A. "Grady is unfit to care for the original
manuscripts of Crowley's due to the
alcoholism and the fact that many
strangers visit his house in Berkeley
who are in themselves of the crazy,
alcohol fringe. There is also a good
deal of drugs in this circle."
Q. Are you familiar with the name Frederic Mellinger?
A. Yes.
Q. Who is he?
A. He was a good friend of mine and a member of the OTO.
Q. He went overseas during World War II, did he not?
A. Not during.
Q. But after?
A. After.
Q. And do you know if he was ever asked to go to Switzerland or Germany by Mr. Crowley or Mr. Germer?
A. No, I don't know.
Q. Now I was asking you before about friends of yours that have become ill. When that happened and you talked [page 306] to other people about the friends who were ill, have you discussed their illness?
A. That is too wide a question. My mother was ill before she died.
Q. And when you talked to relatives, friends about your mother, did you talk about her physical condition?
A. Yes.
Q. You sound as though it's, of course, natural that you do that?
A. For my mother, yes.
Q. And have you done that with other people that you know, friends rather than relatives?
A. Who, and on what occasion?
Q. I'm just asking you as a general practice what you normally --
A. That is too wide a question. I can't answer whether it's general practice on my part. I can't remember all of the instances when people were ill.
Q. When you wrote to Mr. Motta in 1962 and told him of Mr. Germer's death --
A. Yes.
Q. Do you remember that?
A. Yes.
Q. Do you remember before you wrote to him you had been up to see Mrs. Germer? [page 307]
A. Yes.
Q. Did you say anything in your letter to Mr. Motta about Mrs. Germer's mental condition?
A. You'll have to show me the letter. I forget otherwise.
Q. Let me show you Defendants' Exhibit 50. Let me ask, first of all, if that's the letter that you wrote to Mr. Motta?
A. Yes. I wrote that to Marcello Motta on November 1, 1962.
Q. Is there anything in there about Mrs. Germer's health?
A. I say "Sascha is grief-stricken."
Q. That's only normal, isn't it?
A. Wait a minute.
That is all I said in this letter.
Q. It's only natural that she'd have been grief-stricken; is that right?
A. I say "Sascha is grief-stricken."
I don't see the "only natural."
Q. No, no. I'm asking you: It's only natural that she would have been grief-stricken?
A. Oh, yes. Of course, it was her husband.
MR. MITTEL: Thank you.
I have nothing further, Your Honor. [page 308]
THE COURT: Do you, Mr. MacKenzie?
MR. MacKENZIE: Yes, Your Honor.
REDIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Does the "Blue Equinox state the Grand Treasurer General has complete control over whether dues are paid?
A. Yes.
Q. Was Karl Germer the Grand Treasurer General?
A. Yes.
Q. So it was within his prerogative to determine whether dues were paid?
A. Yes.
Q. Now, you mentioned earlier that Sascha Germer wanted you to notify Mr. Motta of Karl Germer's death because you said Mr. Motta was a student of Karl's?
A. That's right.
Q. Did Sascha say if Mr. Motta had been an OTO or an A.'.A.'. student of Karl's?
A. She didn't say.
Q. A.'.A.'. and OTO are separate?
A. They are separate.
A.'.A.'. is purely spiritual. You know only your superior and only the person that you are helping to the light. There is no political action, no politics, nothing except personal work. [page 309]
Q. Do you have an opinion as to whether Mr. Motta was an A.'.A.'. or an OTO member?
A. I understand --
MR. MITTEL: Objection; foundation.
THE WITNESS: I understand he was A.'.A.'..
THE COURT: Wait a second.
I will permit the answer, but you should establish a foundation for the basis of her knowledge.
BY MR. MacKENZIE:
Q. Do you have an opinion, first of all?
A. Yes, I have an opinion that he was A.'.A.'..
Q. What do you base your opinion on?
A. Letters. Letters to Karl Germer. And I can't remember all of the opinion probably, but substantially there were quite a few things that substantiate it.
Q. In your discussions with Sascha Germer did she ever refer to Mr. Motta as an OTO member?
A. I can't remember that she did. I don't think so.
Q. You heard Mr. McMurtry describe the distinction between a de jure and a de facto Outer Head of Order?
A. Yes.
Q. And you recognize him, did you say, as a --
A. As a de facto until the law written in the "Blue Equinox" can come into effect.
Q. And the basis of the recognition for you is what? [page 310]
A. The fact that he had been able to manage the material affairs of the Order, that he had gotten a good staff around him, and that the Order is operating in a businesslike manner.
Q. Did Mr. McMurtry have an alcohol or drug problem at one time?
A. Yes.
Q. Did he overindulge?
A. Yes.
Q. Does he still have that problem?
A. no.
Q. To the best of your knowledge, is he more or less cured of that problem?
A. He has to be cured; it's his health.
Q. I see. Do you know if Sascha Germer used drugs?
A. I have no idea.
D. Do you know if she sold drugs?
A. I have no idea.
Q. You testified earlier this morning that Mr. Grant was expelled from the OTO?
A. Yes.
Q. When Mr. Mittle asked you earlier today that you didn't once state that Mr. Grant could have been a potential successor to the OHO, do you still believe that that is the case? [page 311]
A. That is not what I testified to. Mr. Grant wrote in one of his books that he was the OHO. He grabbed the title without anybody giving him the right to it.
Q. Was he subsequently expelled?
A. He was subsequently -- he was expelled first and then he claimed OHO.
Q. Thank you.
You also mentioned that the initiation by Karl Germer did not involve papers with names?
A. That's right. There were no personal names on these.
Q. In other words, there were no certifications?
A. No certifications.
Q. Are you saying that any initiations that had been done in OTO were done without certifications --
A. No, the --
Q. -- or only those with Karl Germer?
A. Only Ninth Degrees. that's the way Crowley did it to many members of Agape Lodge.
Q. Now, didn't Grady receive a certification with his Ninth Degree?
A. Yes, he did. Probably the only one.
Q. I see. Now, I think you were shown some letters by Mr., Mittel in which you referred to Mr. Motta as a Third Degree? [page 312]
A. Yes. That may have been a mistake.
Q. Well, when you referred to him as a Third Degree, was that as an OTO member or an A.'A.' member?
A. A.'.A.'..
MR. MITTEL: I'm going to object and move that that series of questions be stricken. I don't think that the letters referred to Mr. Motta's being a member of the Third Degree.
I think they talked about duties of Third Degree members.
MR. MacKENZIE: Well, then let me rephrase that question.
BY MR. MacKENZIE:
Q. When you were referring in these letters to a Third Degree duty and they were addressed to Mr. Motta, were you considering him in light of a Third Degree?
A. Not an OTO Third Degree; an A.'.A.'. Third Step.
Q. Do you have any reason to believe whether he is or is not an OTO member?
A. I have no reason or no knowledge of this.
Q. Do you have any reason to believe he is an OTO member?
A. I have no reason to believe he is an OTO member.
MR. MacKENZIE: No further questions.
THE COURT: Do you have any recross, Mr. [page 313] MIttel?
MR. MITTEL: Perhaps, Your Honor.
May I just take a look?
No, Your Honor.
THE COURT: Thank you.
You may step down.
(Witness excused.)
THE COURT: Counsel, would you approach the podium for a minute. Oh, here's fine. I have to shout at you.
I want to make sure I've got the trail here as accurately as I can./ I think there are some questions about the testimony.
Now, Mr. Crowley died in `947 and left the property to the OTO. Now, as I understood at that time Mr. Germer was living in New York City.
MR. MacKENZIE: Yes.
THE COURT: And he ultimately came to California?
MR. MacKENZIE: Yes.
THE COURT: When was that?
MR. MacKENZIE: In the '50s, I believe.
Miss Seckler. SECKLER: Karl and Sascha Germer came to California in 1956.
THE COURT: Now, did he obtain custody of [page 314] all the properties which Mr. Crowley had left to the OTO, or did he have a group in England and a group in the United States?
MR. MITTEL: It's our position that he obtained possession of everything after somewhat of a struggle between himself and the literary executors who were not turning it all over. There's some evidence --
THE COURT: Do you know whether the literary executors were in England?
MR. MITTEL: Yes, Sir.
I'm not sure whether the plaintiffs are going to take a position to the contrary, Your Honor.
MR. MacKENZIE: No, we agree with that, Your Honor, as far as when Mr. Germer initially thought that he could get all the papers except some copyrights which the executor kept.
THE COURT: Well, what about those publications that were done in England? How did those get published?
MR. MITTEL: Which publications?
THE COURT: I thought there had been some official publications in England.
MR. MITTEL: Oh, there have been. That's the -- let's see if I can summarize it.
The copyright infringement suit, that was the [page 315] lawsuit in Maine, was about, among other things, some of those publications done in england and then reprinted in the United States by Samuel Weiser, Inc.
For instance, the secret rituals about which there was some testimony this morning was published by -- or written anyway by a guy named Francis King. Where he got the rituals from, it is not clear.
THE COURT: When were they published?
MR. MITTEL: '72.
THE COURT: So as far as the main theme is concerned, Mr. Crowley died and leaves the property to the OTO.
Mr. Germer got all or almost all of those documents. Right?
And what does he do? He moves the whole thing out to California.
MR. MITTEL: Everything comes to California. You're going to hear some testimony on direct, on the defendants' direct and maybe on the plaintiffs' direct, about different inventories of the library that were prepared.
THE COURT: Okay. Successfully keeping everything.
MR. MITTEL: Everything come to California. [page 316]
THE COURT: Okay. Me Germer died in 1962, and he died intestate.
MR. MacKENZIE: He left a will, but it was no probated by his wife.
THE COURT: Well, did the will itself do anything or --
MR. MITTEL: It's a rather obscure will. It leaves the property to the Heads of --
MR. MacKENZIE: It's a Plaintiffs' Exhibit.
MR. MITTEL: I think it is a Plaintiffs' Exhibit. I'm not sure, but the will was never probated.
MR. MacKENZIE: It's a Plaintiffs' Exhibit, Your HOnor. It's very short. It's half a page. So, in essence, Sascha --
THE COURT: You'll have to forgive me a second.
MR. MacKENZIE: All right.
THE COURT: So then, in essence, his wife obtains custody as the executrix.
MR. MITTEL: Right.
THE COURT: So then she dies without --
MR. MITTEL: That's right.
MR. MacKENZIE: That's correct, Your Honor.
MR. MITTEL: Whether she's anything more than the custodian is -- [page 317]
THE COURT: -- another question.
MR. MITTEL: -- another question.
THE COURT: Okay, fine. Thank you.
All right. Proceed with the next witness, then.
MR. MacKENZIE: Fine. Helen Parsons Smith.
THE COURT: Will you step up, please?
HELEN PARSONS SMITH,
called as a witness by the Plaintiffs, having been first duly sworn, was examined and testified as is hereinafter set forth.
THE COURT: Would you please state your full name for the record and spell your last name?
THE WITNESS: Helen Parsons Smith, S-m-i-t-h.
DIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Mrs. Smith, would you state you age?
A. Seventy-five
Q. And your residence address, please?
A. Kings Beach, California.
Q. How long have you lived in California?
A. Since 1923.
Q. And you're familiar with the OTO?
A. Yes. [page 318]
Q. And why is that? How is that?
A. I have been a member since 1939.
Q. How did you become involved in OTO?
A. My husband, Jack Parsons, introduced me to the Order about 1937.
Q. And who was your husband?
A. John Whiteside Parsons.
Q. Have you remained or continued your involvement with OTO since your initiation?
A. Yes, continuously.
Q. At the time of your initiation, about how many people were in the Order?
A. I can hazard a guess. A small number, perhaps about 20.
Q. And were you a member of the Agape Lodge?
A. Yes, I was.
Q. Do you know if there were other lodges at that time?
A. I was not aware of any.
Q. Do you know Grady McMurtry?
A. Yes.
Q. When did first meet him?
A. Probably around 1940. He was a friend of my husband's who came to the house frequently.
Q. Did you know Karl Germer? [page 319]
A. Yes. I've met. I don't really know him.
Q. Were you aware if he performed any initiations for the Lodge?
A. I was never aware of any. I understood he didn't like ceremony.
Q. Do you know if he ever performed any rituals?
A. I know of none.
Q. Did he ever express to you any feeling about performing rituals of initiations?
A. No, but to my husband?
MR. MacKENZIE: Well, let the other side make the objections.
BY MR. MacKENZIE:
Q. Well, do you know if he had an aversion to perform rituals or initiations?
A. I believe he had an aversion. I have not --
MR. MITTEL: Objection; foundation.
MR. MacKENZIE: She's stated she's been a member and that --
THE WITNESS: I have never known him to be in any ceremony or initiation, which initiation is a ceremony.
THE COURT: Well, I believe that what she said is by way of foundation, and it is knowledge that she has pro forma. [page 320]
BY MR. MacKENZIE:
Q. Did you know Mr. Motta in the 1950s?
A. I can't say I knew him. I met him several times.
Q. When you met, did you know whether he was an OTO member?
A. No. I knew that he was interested in Thelema, which was the reason for his visit to our home in Malibu.
Q. But you believe that is something distinct from OTO; is that -- Well, let me ask you this:
Is that a common thread?
A. Yes.
Q. And does that run in A.'.A.'. as well, Thelema, Thelemic --
A. Yes.
Q. Now, are you aware that Mr. Motta has stated in "Magick Without Tears" that he was introduced to you as a Ninth Degree OTO member?
A. I read it in the book.
Q. To your knowledge, is there any truth to his statement?
A. Not to my knowledge.
Q. Well, was he ever introduced to you as a Ninth Degree?
A. No. [page 321]
Q. Was he ever introduced to you as any degree?
A. No.
Q. Was he ever introduced to you?
A. Yes.
Q. Were you ever an officer of Agape Lodge?
A. Yes, I was. I was Treasurer for a time.
Q. And how often were meetings held in those days?
A. Quite frequently. At least once a week. Sometimes there were occasions other than actual meetings, such as social affairs, dinners.
Q. Did you say -- I'm sorry -- Secretary or Treasurer?
A. Treasurer.
Q. Were records kept of these meetings?
A. Yes. Everything was done in proper order, such as Roberts Rules of Order. There were records of initiations, minutes of meetings.
Q. I see. Were all the initiations that were conducted recorded?
A. Oh, yes.
Q. Was there a presiding officer with an Agenda?
A. That's right.
Q. Now, what were your required to do as treasurer?
A. To keep the records of the treasurer, to disperse the moneys to the various accounts that people contributed moneys, such as to funds, funds for books, [page 322] for purchases -- well, perhaps I should say purchases of, of course, funds to be send directly to Crowley or to support he Lodge as well as dues, initiation fees.
Q. Were dues mandatory?
A. Oh, yes.
Q. Was every member required to pay dues?
A. Definitely.
Q. Do higher degrees pay dues, as well?
A. Various amounts of dues for various degrees.
Q. Now, Mr. McMurtry and Miss Seckler testified that beginning in late 1969 and 1970 here in California they began to rebuild the Order. Were you involved in that?
A. Yes. I was after awhile.
Q. Do you remember why you decided to assist them in this?
A. I've always been very much interested in Thelema, which was the reason I started publishing, because I wasn't aware there was any activity of any kind. At least that was my way of spreading the word.
Q. Had you seen the Caliphate letters?
A. No. Had Mr. McMurtry shown you those?
A. Very recently. As a matter of fact, one of them I saw just within the past two weeks.
And the others, I can't say that I saw them [page 323] before, but fairly recently.
Q. Do you think those letters, in your opinion, grant Mr. McMurtry any particular powers at the present time?
A. Yes, I do. Emergency powers to carry on and formulate the Order. And definitely such an emergency did arise when we lost the Head, Mr. Germer.
Q. Do you believe they grant him OTO leadership powers?
A. Yes, I do, definitely.
Q. Now, were you involved in the initiation of members in the early 1970s?
A. I can't say what year, but, yes, when Grady and Phyllis reactivated the Order I was involved in initiations.
Q. Was Mr. McMurtry involved in these activities, as well?
A. Oh, yes.
Q. Do you know some of his activities?
A. Yes. I know he taught Yoga, classes -- right now I don't recall the subjects, but I know that he did.
Q. Other classes, in addition to Yoga classes.
A. Yes, at the home in Dublin.
Q. Do you know if he engaged in initiations?
A. Yes. Initiation ceremonies.
Q. Now, are you aware of Mr. Motta's claims to the [page 324] Outer Head of the Order?
A. Yes, I believe I have read it in some of his books.
Q. Yes.
A. I think that's about the only place that I have -- I would have been aware of it.
Q. Having been in the order for some 45 years, I'd like to ask you if you can evaluate the validity, as you see it, of Mr. Motta's claims?
A. I think primarily -- I'm not aware of whether he is a member of the Order. And by the "Order," we refer to the Ordo Templi Orientis, or the OTO.
Q. I would like to read to you certain quotes that Mr. Motta has published and ask your reactions to them.
"The following individuals were
at some time associated with either
A.'.A.'. or the OTO or if not,
publicly claimed such association.
They were lying or have been
expelled from OTO or lost contact
with the A.'.A.'. for conduct
unbecoming."
You testified that you have been associated with the OTO. Have you been associated with A.'.A.'.?
A. A.'.A.'. is not an organization as such. I', only acquainted with the person I brought in. [page 325]
Q. All right. You are just an OTO member?
A. (Witness nods head up and down.)
Q. Have you been expelled from the OTO?
A. No.
Q. Have you lost contact with them for conduct unbecoming?
A. No.
Q. Quote:
"Helen parsons Smith has repeatedly
pirated OTO property and claimed to
represent the Order without ever
having received the proper warrant."
Let's break that down.
Have you ever pirated OTO property?
A. No.
Q. Have you published OTO property --
A. I have published --
Q. -- or material?
A. -- Crowley's, Crowley's writings, yes.
Q. Have you sought the OTO's permission, plaintiff OTO's permission to do so?
A. I have recently received permission to publish.
Q. Have they ever objected to you publishing?
A. No. They recognized it quite favorably.
Q. Have you claimed to represent the Order without a [page 326] proper warrant?
A. Have I ever claimed to represent the Order in a proper warrant? No, I never claimed to have a warrant.
Q. All right. Quote:
"Although I have said materials
put out by thieves Regardie,
McMurtry, Helen Smith is suspect" ...
Have you stolen any material?
A. No, I have not.
Q. I'd like to show you Plaintiffs' Number 52 and ask if you'll just study that for a moment.
A. (Witness peruses document.)
Q. Do you recognize that letter?
A. Yes, I do.
Q. Did you receive this letter from Mr. Motta?
A. Yes.
Q. Drawing you attention to the first paragraph, he says:
"I am sending him"
and he's referring to Jim Wasserman --
"here with a power of
attorney so he can represent me
in this matter."
And beginning at the next paragraph he says:
"I would advise you and Phyllis, [page 327]
to do the same and also Grady.
Give him powers of attorney to
represent you, too."
What was you understanding as regards -- now this was written, and let me preface that, at the time of the Calaveras hearing, was it not?
A. Well, there's no date on this.
Q. Well, there is a little bit of date at the top of the third page written in a strange manner, 11B7 {SIC sb. "ll-v-7" -def}.
A. That would be may 7th, probably. 7-BN.
Q. May 11th, presumably, '76?
A. The "6" didn't print.
Q. What was your understanding of this proposal by Mr. Motta to join your powers of attorney?
A. Well, I very carefully give my powers of attorney. And I saw no reason for it myself there.
Q. Okay. Now, the bottom paragraph reads:
"Wasserman called me on phone
last night and tells me that you
complained to him that I hadn't
been in tough. I haven't been in
touch since 1963. Mrs. Germer
cut contact with me completely."
Had you been in touch with Mr. Motta at any time prior, between 1963 and this letter? [page 328]
A. I did write him once, but I don't know the date of the letter.
Q. Okay.
A. So I can't say that it was before or after this.
Q. Turning to the second page, the second paragraph from the bottom, the fourth -- third line states:
"Mrs. Germer Never" -- capitalized --
"sent me any OTO material. And if
Mr. Germer did, it ended up in the
Roman Catholic hierarchy who were
active participants in CIA allies
and lies {SIC in place of "and lies" sb. "allies" -def}
in the 1964 coup."
Do you have any reason to question Mr. Motta's statement that he never received any OTO material?
A. I have no reason to. He's stated it. I didn't know.
Q. Turning to the third page, at first full paragraph, the fourth line down, he writes:
"But I wonder if it would not be better
for you American heads to get together,
institute a central headquarters
of some sort and keep the library
in custody in USA."
Why does he call you an American head? [page 329]
A. The thought comes to mind there that he's not aware of the OTO organization or else he wouldn't call more than one person a head in one country.
Q. Yes. Now, his reference to a "central headquarters" of some sort, is the particular OTO parlance? Would there be an OTO word to describe "central headquarters"?
A. You call it that word itself headquarters.
Q. You would use --
A. Headquarters of the OTO, yes.
Q. You would use -- I see. All right.
And finally the paragraph beginning with:
"Mr. Germer's concern to send
the library to me was because
he firmly believed that a very
serious upset of the earth's
crust is imminent and that the
whole territorial United States
would be affected. He wanted
to assure its safety, not to
'give it to me,' and besides
he couldn't give it to me, just
as I couldn't have it. It
belongs to the OTO and we're
all merely its caretakers and [page 330]
custodians."
I'd like to show you Exhibit No. 77, and ask you --
MR. MITTEL: I move to strike the preceding commentary by or recitation from a letter by counsel. There was no question asked about it.
THE COURT: Well, I agree there was no question about the letter, but --
THE WITNESS: I hope I can make --
THE COURT: It's been put in evidence, in the record, anyway.
THE WITNESS: I can comment on it.
BY MR. MacKENZIE:
Q. Well, please give me your comments.
A. I know that Germer didn't like to visit us in Malibu because we were supposed to be on an earthquake fault.
He had quite a phobia about earthquakes and the whole Western United States going into the sea from Nebraska on West.
Q. Okay. There are still people with those thoughts today.
Do you recognize this Exhibit 77?
A. Yes, I do.
Q. And can you identify what that is? [page 331]
A. It was sent to me as a proposed insert in a book to be published by Weiser Company, New York.
Q. And do you know who the author is?
A. Motta.
Q. Is that his signature at the bottom of page 2?
A. Yes. I believe it is from all other correspondence from him.
Q. Would you please read aloud the paragraph that I've underlined on the first page, the third full paragraph?
A. "Mr. Grady McMurtry, Ninth Degree
OTO by patent of Baphomet, Tenth
Degree."
Q. Now, who is Baphomet?
A. That's Aleister Crowley.
Q. All right.
"Ninth Degree and Tenth DEgree,
Eleventh Degree OTO duly
ratified by Saturnus."
Q. Now, Saturnus is who?
A. Karl Germer.
Q. All right.
A. "Tenth Degree OHO after Baphomet
Degree is head of Lodge in the
United States of America and we duly
recognize he is co-heir in the [page 332]
matter of Aleister Crowley's literary
remains."
I don't know what he means by "co-heir."
Q. What is you opinion as to what Mr. Motta is -- or what des this paragraph say?
A. I can't --
Q. Let me ask you this: Does he acknowledge Mr. McMurtry?
A. I would say definitely that he did, but that time -- well, I accepted this.
Q. You accepted that?
A. I wasn't involved in a lot of the internal affairs of the Order.
Q. But just reading on the face of the paragraph, would you say he is accepting Mr. McMurtry's --
A. Definitely.
Q. -- position?
A. Definitely.
Duly ratified, too.
Q. The bottom paragraph --
A. The bottom paragraph?
Q. -- if you would just read that aloud, please?
A. "Mrs. Helen Smith Ninth Degree OTO by
patent of her husband, Wilfred Smith
(who was Ninth Degree OTO by a patent [page 333]
Jack Smith, Seventh Degree duly
ratified by Saturnus Tenth Degree)
was also duly ratified by the late
OHO" -- this is Germer -- "she being
also head of Lodge in the United
States since her husband's death
was also duly recognized -- we also
duly recognize her as a Sister and
Co-heir in the matter of Aleister
Crowley's copyrights." {SIC parts garbled -weh}
Q. Fine. Thank you.
A. However, it is not true. I didn't inherit head of the Lodge. Also I don't like the title "M-s." The abbreviation for the ceremony {SIC} is "M-r-s." for Mrs.
Q. I see.
A. I was never head of a Lodge in the United States at any time, before or after my husband's death.
Q. Do you know where Mr. Motta got this misinformation?
A. He couldn't have gotten it anywhere. It's not true.
Q. I see. Do you know where he was residing at this time this was written?
A. Where Mr. Motta was residing?
Q. Yes. [page 334]
A. No, I don't know. But possibly in Brazil.
Q. Well, as a result of the statements that I read to you that he had published in some books about you, did you suffer any reaction as a result?
A. Of course. I was highly upset that something was being published, public property. I was greatly concerned.
In fact, I got in touch with Phyllis at the time. And we talked the matter over. Especially to have untruths printed about one, it did affect my life and my livelihood.
Q. Tell me how did it affect you life and livelihood?
A. My publications were suspect. My association with someone who prints --
Q. Yes.
A. -- unreliable material.
Q. Did it cause you any physical reaction?
A. Yes. I was greatly disturbed by it. I can't say I visited an M.D., but I did go to a chiropractor for relaxation.
Q. Okay.
A. Something like that really ties one up.
Q. I'd like to talk for a minute about Thelema Publications.
Is this the name under which you do business? [page 335]
A. Yes.
Q. And when did you commence doing business under that name; do you remember?
A. When did I become active? In about 1969.
MR. MacKENZIE: Okay. Id like to show you an exhibit that we haven't previously introduced, Your Honor. I think it got lost in the shuffle.
This is --
THE COURT: What number are you giving it?
MR. MacKENZIE: Well, let's see.
THE COURT: Well, they don't have to be sequential. We can start with the 200 series.
MR. MacKENZIE: 200, that's fine.
BY MR. MacKENZIE:
Q. Well, I'd ask you to identify this, if you would?
A. Yes. It's what's commonly called a sales tax certificate. It may also be called a seller's permit.
Q. All right.
A. This is for the address in Kings Beach, which was originally -- I was originally issued this resale number in 1971 at Oceanside.
Q. Okay. And you say that you started using, doing business under that name approximately two years prior?
A. Yes, in organizing materials. [page 336]
Q. All right. And I'd like --
THE COURT: I'm sorry. What year did you stat that?
THE WITNESS: '69.
BY MR. MacKENZIE:
Q. Would you take a look at Plaintiffs' 87 and 88?
A. Yes.
Q. And --
A. 87 is my application for a fictitious business name as Thelema Publications at Kings Beach, 1974.
And no. 88 is an application for renewal in 197 -- '80. 1980.
Q. Have you ever discussed your use of this name with the OTO?
A. No. I don't recall that I ever discussed it with anyone.
Q. Did they become aware of your use of this name?
A. The OTO, yes.
Q. Did they ever object?
A. Oh, definitely, no.
In fact, it's been recognized that at least I'm doing a service for the Order.
Q. Yes. Do you know that Karl Germer used a similar name in the 1950s?
A. I know now and I knew sometime earlier than this, [page 337] but not at the time that I took out these papers.
Q. Do you know what sort of material Mr. Germer's Thelema Publishing Company -- it's actually called Publishing --
A. Do I know as of today? As of today, yes, it was strictly writing Crowley's --
Q. I see.
A. -- such as Thelema Publications.
Q. Are you aware that the defendant in this lawsuit, Thelema Publishing Company, is in existence and doing business under this name?
A. Yes, I am aware of it.
Q. How did you become aware of that?
A. I've had letters inquiring if I published their books.
MR. MITTEL: Objection; Best Evidence.
THE COURT: Well, do you have --
MR. MacKENZIE: We have copies of letters, Your Honor.
MR. MITTEL: They're all objected to, all the letters, that is.
THE COURT: Well, do you want to further resolve that issue now or wait until the witness is off the stand.
MR. MacKENZIE: Well, why don't we finish the [page 338] testimony, if we may?
THE COURT: Well, what are you talking about?
MR. MacKENZIE: We're talking about Exhibits 83, 86, 100 and No. 6; four of them.
Actually No. 100 is not one of those, Your Honor. That's going to be used for something else.
So. 83, 86 and No. 6.
THE COURT: 83, 86 and --
MR. MacKENZIE: No. 6
THE COURT: -- and No. 6.
MR. MacKENZIE: Well, I don't even need to introduce them, Your Honor, if Mr. Mittel will stipulate that the plaintiff received them and that the plaintiff's testimony can carry on after that.
She's going to testify about the confusion that the letters expressed.
THE COURT: Is that for the purpose of their being offered?
MR. MacKENZIE: I'm sorry?
THE COURT: Is that the purpose for which they are being offered.
MR. MacKENZIE: And to show that there's confusion in the public mind.
MR. MITTEL: I am going to object to all [page 339] three of them, Your Honor, on the grounds of authenticity and hearsay.
MR. MacKENZIE: Well, all of them really are business records, Your Honor, either purchase orders or letters from publishers. And --
THE COURT: I'm sorry. 6 and 80 what again?
MR. MITTEL: 6, 83 and 86, Your Honor.
MR. MacKENZIE: Your Honor, if I could just --
THE COURT: They may be admitted for purposes of showing confusion between the two publishing companies known as Thelema.
MR. MacKENZIE: Thank you, Your Honor.
(Plaintiffs' Exhibits 6,83 and 86 previously marked for identification were received in evidence for the limited purpose of showing confusion between the two publishing companies known as Thelema.)
BY MR. MacKENZIE:
Q. In addition to these letters, have you received any other communication showing evidence of confusion?
A. Yes. I've had a bookstore that I can -- I recall a bookstore calling me up and insisting that I was the publisher of -- [page 340]
Q. I see.
A. -- one of the titles of Thelema Publishing Company. They confused the addresses.
Q. I'd like to show you Plaintiffs' Exhibit 100 and ask you to identify that, please?
A. Yes. It is the application that I sent to a broker author company {SIC -weh} author company, that printed in -- books in print.
Q. Are those a listing of books that you have published on that sheet?
A. Yes, they are, my titles.
Q. I see. You published all of those books listed on that sheet?
A. Yes.
Q. Would you explain just what you do?
Do you publish books, or do you write books?
A. I don't personally write them. As a matter of fact, I try to -- I do publish Crowley material as Crowley wrote it without comment and without inserting my own thoughts into the writings.
As nearly as possible the first title I haven't altered at all except to make corrections from previous publications.
And the same goes for the others.
Q. Okay. Now, it lists an ISBN number in the box that's been highlighted for you. [page 341]
A. Yes.
Q. Is that your number?
A. Yes, that's the number that has been assigned to me. It's an International Standard Book Number.
Q. And could you explain how those numbers are assigned?
A. By application. I see here that I applied for this number in 1970 -- no. That isn't correct.
The Year I started the publishing is 1970.
Q. Do they go chronologically in assigning numbers?
A. Yes, that definitely would indicate to the broker {SIC -weh} company when it was issued.
Q. So does that mean that -- a higher ISBN means that it got assigned later than a lower number?
MR. MITTEL: Objection; foundation, unless you can establish that she is familiar with people who established the system.
THE COURT: Well, the exact date that she was active in publishing, because another question or two more about perhaps how she is familiar with the assignment of ISBNs.
BY MR. MacKENZIE:
Q. Mrs. Smith, would you explain to me how it is that you are familiar with the assignment, and to refresh your memory, I'll show you Exhibit 101. [page 342]
How long have you been active in publishing this, since 1969?
A. Yes, continuously since 1969.
Q. And you've been a member of ISBN since they assigned you this number and you --
A. Yes. I've -- since 1969. I printed my first book, though, without this, to be honest, because I wasn't aware of it.
Q. Okay. Well, in having been a member of ISBN at that time, do they send you information that explains how those numbers are assigned?
A. I have learned of it, because at one time I had someone who was trying to help me, and we applied for another ISBN number to publish a nonrelated book, which didn't -- wasn't published, and that was a much higher number.
Q. I see. Is that the substance?
A. Yes.
Q. All right. Now, then, let me ask you then: Does a higher ISBN number then get assigned later?
A. Yes, all the numbers are consecutive.
MR. MITTEL: Objection; foundation.
THE COURT: Oh, I think that she had adequate foundation to testify to that.
All right. [page 343]
BY MR. MacKENZIE:
Q. Do you happen to know what the -- if the defendant's Thelema Publishing Company's ISBN number is higher or lower than yours?
A. It's a larger number.
Q. It's a larger number.
Does that indicate to you that they -- that at least as far as ISBN is concerned, did not apply for that service --
A. Yes.
Q. -- until after you had?
A. To me it indicates that.
Q. Okay.
A. Today it is a requirement for any published book to contain an ISBN number.
Q. Thank you.
Do you believe that your Thelema Publications has been damaged in reputation of business as a result of Thelema Publishing Company?
A. Yes, I do.
MR. MITTEL: Objection; leading.
THE COURT: That's purely foundation; overruled.
THE WITNESS: Yes, I do.
I've had, as I said, letters and inquiries. [page 344] In fact, I had many letters that I was able to produce to Mr. MacKenzie.
I've had a few telephone calls, one fairly recently, that I recall in detail. There is confusion. So I have lost material. I have lost orders that have gone to the other publisher.
BY MR. MacKENZIE:
Q. Do you know what kind of books they're distributing?
A. Thelema Publishing Company?
Q. Yes.
A. Only from a few of the so-called "Equinox" that I have seen, I would say that they are publishing, to a certain extent, Crowley material that's been altered so it isn't pure Crowley material.
Q. How has it been altered?
A. Omission and insertion of personal opinions. It is in contradiction to what I try to do which is publish a Crowley quote or a book as Crowley wrote it.
Q. As -- I/m sorry?
A. As -- I said I try to publish as Crowley wrote it without my opinion in it.
Q. Let me show you Plaintiffs' Exhibit 122, please, and ask you to identify that?
A. Yes, I do recall it. [page 345]
Q. Is this a letter you sent to Mr. Motta?
A. Yes.
Q. You state you have taken seriously the obligation of the Third Degree OTO?
A. That's right.
Q. What does that mean?
A. If ill is spoken of another member of the OTO that at least he be alerted. I don't recall the exact quotation.
Q. Okay. Well, that's the general idea?
A. Yes. Which I do try to adhere to.
Q. And do you know whether Mr. Motta was a member?
A. No, I don't. It was something ill being spoken of someone who was independent.
Q. Do you know at all today if Mr. Motta has ever been a member of the OTO?
A. No. I mean -- I don't know if he has ever been a member of the OTO.
Q. I see. But you wanted to send him this anyway?
A. Yes.
Q. Did he ever respond to you?
A. No. Except by abusive notices in his Manifesto, printed books.
Q. I'm sorry?
A. Except by his abusive notices in his Manifestos, [page 346] published books.
Q. What do you mean by that?
A. Well, he hasn't responded directly to the letter, except that he has abused my name in his published books.
Q. I understand.
MR. MacKENZIE: I have no further questions.
Thank you.
THE COURT: Cross-examination, Mr. Mittel.
(Brief recess taken.)
THE COURT: Mrs. Smith, would you take the witness stand again, please.
CROSS-EXAMINATION
BY MR. MITTEL:
Q. Good afternoon, Miss Smith -- Mrs. Smith. I'm sorry.
I think you said there were 20 people in the Ordo Templi Orientis in 1939?
A. Approximately; new numbers {SIC}, dropouts of old ones.
Q. That small number didn't effect the existence of the Ordo Templi Orientis, did it? It was an ongoing organization?
A. Definitely. Each one was very strong, active.
Q. Now, when you were initiated, did you receive a [page 347] document of any kind?
A..I don't believe so. I don't recall.
Q. That didn't affect {SIC sb. "effect" -weh} the validity of you initiation, did it?
A. No.
Q. When you were initiated into the Ninth Degree, did you receive a document of any king?
MR. MacKENZIE: Your Honor, if I can just make clear --
THE WITNESS: I don't --
MR. MacKENZIE: I'm sorry. I thought Mrs. Smith had said she didn't recall whether she received a document for the First Degree, and the follow-up question said -- assumed that she said she had not. And I'd like to clear that up.
THE COURT: Well, the record may stand on what it is.
THE WITNESS: I don't recall having received one.
BY MR. MITTEL:
Q. And if you didn't, that wouldn't affect the validity of your status as a Ninth Degree member, would it?
A. No. I would be recognized at least by the Lodge in my proper degree. [page 348]
Q. Have any of the plaintiffs ever -- any of the plaintiffs ever questioned your -- the validity of your standing as a Ninth Degree member?
A. No.
Q. Do you have any idea whether Mr. McMurtry, for instance, has any documents establishing him as a Ninth Degree member?
A. Would you repeat your question?
Q. Do you know if Mr. McMurtry has any documents of initiation into the Ninth Degree?
A. I don't know.
Q. Do you know if Mrs. Seckler does?
A. I don't know.
Q. Were you there when Mrs. Seckler was initiated into the Ninth Degree?
A. No.
Q. Were you there when Mr. McMurtry was initiated into the Ninth Degree?
A. No, I have not been out of this country.
Q. Do I understand, that, that the only basis of your knowledge that Mr. McMurtry and Miss Seckler are in the Ninth Degree of the Ordo Templi Orientis is they're telling you that they are?
A. It has been -- repeat that again.
Q. Do I understand that the only basis for you [page 349] knowing that they're members of the Ninth Degree is because they told you so and other people have told you so?
MR. MacKENZIE: That is mischaracterizing the witness' testimony.
THE COURT: Well, it is cross-examination.
THE WITNESS: I believe that some of the letters to McMurtry from Crowley indicate that he's a Ninth, and I accept that.
BY MR. MITTEL:
Q. What about Miss Seckler, are there any letters that indicate she is a Ninth Degree person -- member? I'm sorry.
A. Only from information that I have received from her directly do I recognize her as a Ninth Degree.
Q. When is the first time that you saw any of the documents on which Mr. McMurtry relies for his claim to be the Caliph?
A. I don't know the date.
Q. Can you give me a rough year?
A. Sometime when I visited the Grand Lodge.
Q. In the --
A. No, I can't give you a date.
Q. You mean in the 19 -- [page 350]
A. I would have to refer back to -- well, within the past two years.
Q. Sometime within the last two years.
A. Two years.
Q. And when you say the Grand Lodge, you mean the Lodge in Berkeley?
A. Headquarters, yes.
Q. And I understand you to be testifying that you've never seen those letters before?
A. That's right.
Q. Let me show you Exhibit 39-A and 40, and let me first ask you if at the end of Defendants' Exhibit 40 there appears your signature?
A. That's right.
Q. All right. Would you now look at those letters and, in particular, the highlighted material?
A. Of course I'm just reading the highlighted material. Quite a bit other than that.
Q. You don't have to read it out loud. Just read it to yourself.
A. (Witness peruses document.)
Yes, I have read it.
But you see at the time I wasn't aware of that, what the Caliphate letters were.
Q. Well, now, let me ask you: In the letter that Mr. [page 351] McMurtry wrote to Mr. MOntenegro, that is Defendants'; Exhibit -- I believe it's 39-A -- do you see that?
A. Yes.
Q. Does he not refer to material, what the plaintiffs call the Caliphate letters, dow he not talk about what Mr. Crowley said to him about being 777?
A. Yes.
Q. And did Montenegro show you that, that is, that letter?
A. I don't believe so. At this time I was living in Malibu and Dr. Montenegro was in San Francisco.
Q. Well, Dr. Montenegro answered Defendants' Exhibit 39-A, which is Defendants' Exhibit 40, did he not?
Look at it where he's responding to McMurtry's letter of January 27.
A. That's right. At this time he was in Fresno.
Q. All right. And when he wrote Defendants' Exhibit 40, you also signed Defendants' Exhibit 40; isn't that correct?
A. Yes.
Q. And so had you not seen the material that Mr. McMurtry was relying on with respect to that?
A. That Montenegro was relying on?
Q. Yes.
A. Montenegro was relying on McMurtry's recitation, [page 352] yes. I don't know whether or not he saw the Caliphate letters.
Q. Well, so he was talking about the letter of January 27th?
A. I didn't see them, and I haven't seen this letter, No. 38.
Q. So you told Mr. McMurtry in Defendants' Exhibit 40 that his claim was invalid even though you didn't know what his claim was?
A. Well, there was discussion, yes.
Q. Yes. Did you know what his claim was?
A. A discussion between McMurtry and Montenegro.
Q. And you knew of a discussion between McMurtry and Montenegro?
A. I think I knew that he was, as I thought, trying to claim that he was doing something for Crowley.
Q. And you knew that wasn't the case?
A. I believed it was not the case. I believed at that time it was not the case.
Q. Did you also believe that that was not the case in 1977?
A. I have no idea about the date.
Q. Well, in 1977, did you believe that McMurtry was a Caliph?
A. I don't know what occurred in '77. I don't recall [page 353] when I first -- no, I couldn't have known about it, because I didn't see it. Until about approximately two years ago I hadn't seen the Caliphate letters.
Q. In 1976 you and Miss Seckler and Mr. McMurtry took part in an activity that led to --
A. That's right.
Q. -- getting possession of the library; is that right?
A. Yes.
Q. All right. And during that activity did you not discuss with Mr. McMurtry his so-called Caliphate letters and so-called letters of authorization?
A. I didn't say I hadn't discussed them; I hadn't seen them.
Q. And when you had your discussion with him, do you remember that he had some type of position in the --
A. Yes.
Q. Someone had to acknowledge someone, so you acknowledged Mr. McMurtry --
A. So I --
Q -- in 1977?
A. I know.
Q. You believed that he was the Caliph; is that right?
A. That's right.
Q. And you also believed that gave him the position of [page 354] authority in the Order?
A. That's right.
Q. Let me show you Defendants' Exhibit 70-A, a letter from Gerald Yorke to yourself.
Could you read the yellow portions out loud, please?
A. Do you want me to read the highlighted part or --
Q. Yes, Ma'am.
A. -- or the letter?
Q. No, the highlighted portions.
A. Well, it's -- pardon.
"Grady is the first person I know
to call himself a Caliph and I
cannot recollect AC making use
of the term. Grady won't get
anywhere worth getting to. If
Montenegro had survived, it
might have very well been
different in the States."
Q. And all the way down to the bottom.
A. Oh.
"I do not expect it to have
Caliphate nonsense."
Q. Thank you.
Now, after you got that one -- let me ask you [page 355] this:
Did you interpret this letter as meaning that Mr. Yorke didn't think Mr. McMurtry had any position?
A. Apparently -- well, no. I wouldn't say that. At least he was questioning the terminology of the "Caliph."
Q. In fact, he referred to the terminology of "Caliph" as nonsense?
A. That's right.
Q. YOu didn't write back to Mr.Yorke and tell him he was wrong, did you?
A. No.
Q. Miss Seckler testified that she gave you the only other key to the storage locker in which she put the library in Livermore.
A. Yes.
Q. Did you hear her testimony?
A. Yes.
Q. Is that true?
A. Yes.
Q. Did you have any copies of the key made?
A. No.
Q. Did you give the key to anyone else?
A. No, I did not. I can't identify it today.
Q. Did you, in April or 1979, go to the Public Storage [page 356] facility in Livermore and remove the contents of the boxes in which the library was stored?
A. No, I did not.
Q. You heard the testimony hat the lock was no damaged?
A. Yes.
A. And the door was not damaged?
A. Yes.
Q. That means if you didn't do it, the only other person who could have done it is someone with a key; is that right?
A. I have no knowledge --
MR. MacKENZIE: Objection; no foundation.
THE COURT: Well, --
MR. MacKENZIE: How can the witness answer a question like that?
There are safecrackers out there and they can get in and out without damaging locks.
THE COURT: It's argumentative; the objection is sustained.
BY MR. MITTEL:
Q. You testified that you knew about the defendants' use of the tradename Thelema Publishing Company?
A. That's right.
Q. When did you first learn about that name, that use? [page 357]
A. I believe when I read the first book; I believe it was the Commentaries on Al {SIC sb. "AL" -def}.
Q. And that was sometime in the mid-1970s?
A. I don't recall a date. After the publication.
Q. Did you know in the 1960s of Mr. Motta's use of the Thelema Publications?
A. No, I did not.
Q. When did you first learn of that name, Thelema Publishing Company?
A. I am sorry. I don't recall.
Q. Well, was it at the time you learned of defendants' use of this.
A. I really don't recall.
Q. Well, could it, for instance, have been when you read the Liber Aleph that was published by Mr. Motta and Mr. Germer back in the 1960s?
A. I really even don't recall.
Q. Could it have been sometime in the early 1970s?
A. I don't know when I learned it.
Q. When did you learn that Mr. MOtta was publishing Crowley material in Brazil?
A. A few years ago I saw a copy of one of his Brazilian publications. I say "his Brazilian publications"; could have been no one but Motta.
Q. After you first read the material that Mr. Motta [page 358] published about which you're unhappy, the so-called libelous material, you didn't go to the doctor, did you?
A. I don't -- you mean the proposed Manifesto?
Q. No. I mean the material that was actually published.
A. Yes, I did go to the doctor.
Q. Do you remember having your deposition taken in December of --
A. Yes.
Q. -- 1983?
A. Yes.
Q. When did you go to the doctor?
A. At the time -- after the time that I read his first publication, which was the Commentaries on Al {SIC sb. "AL" -def}.
How soon after?
Q. Yes, Ma'am.
A. I can't recall.
Q. How many times?
A. Twice.
Q. What did the doctor do for you?
A. I went to the chiropractor for relaxation.
Q. Did you do any work with Mr. Germer, any publishing work with him?
A. No -- you say with him?
Q. Yes ma'am. [page 359]
A. No, I tried to help him, though.
Q. Let me show you Plaintiffs' Exhibit 83 about which you've already testified.
A. Yes.
Q. Do you carry the book that is ordered by that document?
A. No. As I wrote on the original, I said, "This is not our publication," and I returned it.
Q. Do you know the person who sent in that order?
A. I have had other orders from the same firm -- bookstore.
Q. And is it your contention that this document shows that there is confusion between you --
A. Oh, yes, definitely.
Q. -- and the defendant, Thelema Publishing Company?
A. Yes.
Q. Do you make the same contention about Plaintiffs' Exhibit 86?
A. That there is confusion?
Q. Yes. That shows there is confusion between you and the defendant, Thelema Publishing Company?
A. Yes. They have what they intend to mean to them. They wrote to me as Thelema, but that's some other company.
Q. Have you done business with -- [page 360]
A. No.
Q. Do you recognize this mark, signature?
A. Yes.
Q. You do, even though you haven't done business with them?
A. All I recall this here -- mean, after all it is --
Q. I mean: Have you ever seen the signature before you received this letter?
A. Not that I'm aware of.
MR. MITTEL: Before I get into Plaintiffs' Exhibit 6, Your Honor, I want to renew my motion to strike this document, first of all, that there is not testimony at all that authenticates 86.
Secondly, they are both hearsay. They're offered for the sake of what they --
THE COURT: No, they are not. They are offered to show confusion. There {SIC sb. "They" -weh} are not offered for the truth.
The motion to strike is denied.
How long are you going to have with this lady?
MR. MITTEL: I think I'm almost done, if you'll give me one second to check.
I have nothing further, Your Honor. [page 361]
MR. MacKENZIE: I have three of four questions, Your Honor, --
THE COURT: You're not through yet, Mrs. Smith.
MR. MacKENZIE: -- and then we'll be done.
REDIRECT EXAMINATION
BY MR. MacKENZIE:
Q. You've seen Defendants' Exhibit 40, which is a letter to Grady from Dr. Montenegro, which also carries the phrase that you signed down at the bottom.
A. Yes.
Q. Okay. I will leave it up here.
Now, was it your testimony that you had seen his credentials at the time that you wrote that up there?
A. Do you mean Montenegro's?
Q. I', sorry.
No, you didn't seen {SIC sb. "see" -weh} Mr. McMurtry's credentials?
A. No.
Q. Now, that letter was just identified as a response to Defendants' Exhibit No. 39-A, which is a letter that Grady wrote to Dr. Montenegro.
And I'd like you, if you would, to take a look at that letter and tell me if Mr. McMurtry anywhere [page 362]in that letter discusses his charters?
A. Discusses his what?
Q. Charters, his letters of authentification or authorization -- excuse me -- or if he only discusses his Caliphate matter.
A. You're asking me to read longer --
THE COURT: Well, why don't you leave that to me?
MR. MacKENZIE: Thank you, Your Honor.,
My contention is the letters of authorization are not discussed in there and the witness hadn't seen the full evidence and hadn't seen --
THE WITNESS: (Nods head up and down.)
BY MR. MacKENZIE:
Q. Are you saying the Dr. Montenegro in 1969 wrote to Grady and recognized his credentials?
MR. MITTEL: Objection; Best Evidence and hearsay.
THE COURT: Well, if you have knowledge on the subject, Mrs. Smith, --
THE WITNESS: Yes. Dr. Montenegro and Mrs./ Burlingame and Grady McMurtry met, I believe, in Oakland, in the San Francisco Bay Area, at which time Dr. Montenegro recognized Grady as being the Caliph and head of the Order. [page 363]
THE COURT: How do you know that?
THE WITNESS: From Dr.; Montenegro by telephone conversation. And then he died the next day.
MR. MITTEL: Same objection. Motion to strike, Your Honor. That's hearsay.
MR. MacKENZIE: It's a dying declaration.
THE COURT: Was the gentlemen {SIC sb. "gentleman" -weh} ill at the time?
THE WITNESS: Yes, he had an enlarged heart. He could have died at any time in the previous 20 years.
THE COURT: I'm going to admit the testimony as an exception to the hearsay rule.
BY MR. MacKENZIE:
Q. I'd like to show you Plaintiffs' Exhibit -- or Defendants' Exhibit 78, which you just looked at.
It states in there, if I can read it: "AC making use of the name 'Caliph.'"
Isn't it a fact that the Caliphate letters discuss the term "Caliph"?
A. That is true. But did Yorke know about it?
Q. My question exactly. Was Yorke a member of the OTO?
A. No. Yorke? No.
Q. And where did he live? [page 364]
A. Yorke lived in London or England, Glouchester.
Q. Was he ever in California?
A. No.
And he also said if Yorke {SIC sb. "Montenegro" -weh} had survived, it may well have been different in the States? {SIC this sentence may be a part of the question by Mr. MacKenzie on the next line, instead of Witness' response. -weh}
Q. Well, isn't it the fact that Yorke {SIC ?! -weh} was expelled from the OTO?
A. That's right.
MR. MacKENZIE: Thank you.
No further questions.
THE COURT: I have a few questions about you publishing, if you don't mind.
First of all, is there any other name other than Thelema Publications as a tradename that you have used?
THE WITNESS: That is the only name that I have used.
THE COURT: Okay.
Well, is it a corporation?
THE WITNESS: No. No, private.
THE COURT: All right. Just in your name?
THE WITNESS: Yes.
THE COURT: Where do you publish; do you own a printing press? [page 365]
THE WITNESS: I am a publisher of -- development of books {SIC response garbled by reporter? -weh}
Okay. Any particular material?
THE WITNESS: Yes.
THE COURT: And the material is the writings of Mr. Crowley?
THE WITNESS: That's right.
THE COURT: Okay. Where have you gotten these writings?
THE WITNESS: Well, from the "Book of Law"' from a publication in Pasadena, which I might have made a few corrections, from original manuscript, "The Soul of the Desert"' by Reea Leffingwell {SIC sb. "Rea" -def sb. "Roy" -pla} who received it from Crowley directly. And I saw that letter before she died.
THE COURT: Did any of it come from library documents?
THE WITNESS: No. No, this was all done before.
THE COURT: Okay. Then as the publisher, you get it into form where it can be sent to the printer?
THE WITNESS: Yes.
THE COURT: Okay. Then somebody -- [page 366]
THE WITNESS: As a matter of fact, I've done as much as I possibly could myself, such as typesetting, proofing, folding the pages to get them into the book.
THE COURT: Getting the ink all over you hands?
THE WITNESS: Well, no. I haven't been involved in the actual printing.
THE COURT: Then somebody binds the book up?
THE WITNESS: Yes.
THE COURT: And how are the expenses for this paid?
THE WITNESS: I have assumed that.
THE COURT: You paid them?
THE WITNESS: Yes.
THE COURT: Have the books sold in the retail market?
THE WITNESS: Primarily bookstores, but also retail directly to he consumer.
THE COURT: I see. And so there is a little income from retail sales?
THE WITNESS: A little.
THE COURT: Thank you.
THE WITNESS: Primarily the wholesale. [page 367]
THE COURT: Thank you very much.
You may step down.
MR. MITTEL: Your Honor, I have a question or two that were prompted by your examination.
RECROSS EXAMINATION
BY MR. MITTEL:
Q. When did you start doing what you just described to the judge?
A. I believe it was 1969. The idea was formulated over a period of time.
Q. When did you send your first book out to market, so to speak?
A. '71.
Q. And which book was that?
A. "The Sheegee (phonetic). {SIC sb. "Shi Yi" -pla sb. "The Shih Ji" -def}
Q. And how many copies did actually get sold?
A. About 350.
Q. And when did you send your second book out?
A. I'd have to look at the book.
Q. Before or after, say, 1976?
A. Probably before. I don't know.
Q. And where were the books sold?
A. Some were sold to bookstores, that I'm aware of.
Q. You mean on the West Coast?
A. Yes. [page 368]
Q. And only in and around California?
A. No. I've numbered each one of my accounts. And I believe Weiser is No. 5.
At the time he had a bookstore in New York. And everyone's aware of Weiser.
I don't know who No. 1, 2, 3 and 4 were.
I sold to retail stores in Los Angeles, several that I was aware of.
Q. Is the lion's share of your business, though, with California, do you believe, except for Weiser?
A. NOt in these days. It was.
Q. When would you say it changed?
A. I don't know.
Q. Late '70s?
A. I don't know.
MR. MITTEL: Nothing else, Your Honor.
THE COURT: This lady may step down.
Thank you.
(Witness excused.)
THE COURT: Counsel, before we adjourn -- Mr. MacKenzie, I'd like an indication on what you have in store. Now much longer do you think it will take you to complete your case in chief for scheduling purposes?
MR. MacKENZIE: Yes, Your Honor. I have a [page 369]
number of witnesses. Mr. Wasserman tomorrow morning; I don't think his testimony, as far as I am concerned, will take more than an hour.
Mr. Mittel may be, well, about a half-hour.
Mr. Heidrick might take -- there's quite a bit there, and I think that could be two hours on my part.
And finally Mr. Starr's testimony will be, I would think, an hour on my end.
MR. MITTEL: Well , --
THE COURT: And that's your case in chief?
MR. MacKENZIE: Yes. I'm not sure if I will call Mr. Motta. If I did, it would be a handful of questions.
MR. MITTEL: You could dispose of Mr. Starr if you would rule favorably on our motion to his being late named.
MR. MacKENZIE: There's a very good reason for that.
THE COURT: No, I don't need to hear the argument about that now.
Let's say, then, for your case in chief to be concluded tomorrow, and instead of running 8:00 to 1:00, we'll start at nine o'clock. [page 370]
We'll start at nine o'clock tomorrow and then we will run, figuring, a full day tomorrow.
MR. MacKENZIE: Fine, Your Honor.
THE COURT: How about you, Mr. Mittel? Can you give me an estimate on your case in chief?
MR. MITTEL: I would say that it's -- I have to say it';s going to take two days.
Obviously Mr. Motta will take the better part of a day. And I have questions of many of the plaintiffs that I'm going to have to do as a part of my case.
In addition, we wish -- we have not finished with Mr. McMurtry. I think we're going to need at least another day next week.
THE COURT: Well, the time I have to work with this is all day Wednesday, all day Thursday. Friday morning I have law and motion on criminal and so we have Friday afternoon to work with.
MR. MITTEL: Maybe we can finish Friday. I would certainly want to do that.
THE COURT: Well, I think we better plan on full days both Wednesday and Thursday.
MR. MITTEL: Your Honor, when did you want to rule on the motion brought by the plaintiffs on the res judica issue? [page 371]
THE COURT: Well, I'm working on it; my clerk is working on it. We'll be working on it tonight. So I would certainly have a decision for you before the defendants begin their case in chief.
All right. So we'll take a full day then tomorrow, probably also on Thursday.
I do want to add one thing, now that I have heard some of the testimony and am familiar basically with the structure and basic outline of the story except, of course, there is obviously more to come in.
I would give you both this advice: You need not be repetitive. Once you have covered a subject with one witness, don't bother putting another witness on to testify to the same thing just for the purpose of doing it again. If you get the testimony clearly once, I'll remember. And giving it to me a second time isn't really going to help.
The same was with cross-examination. I would like it if you would restrict it to the scope of cross-examination. And you have the right to bring on people to explain the testimony.
I would appreciate it if the testimony would be more relevant to the issues that I have to deal with here until we can get a clear question of credibility of a particular witness. [page 372]
If you have a problem with a witness, you are entitled to go into whatever you want on cross-examination as long as it is somewhat relevant. But what I am saying is in cross-examination, please hold it, as much as possible, to that which is relevant and material.
Okay. Thank you.
MR. MacKENZIE: Thank you, Your Honor.
MR. MITTEL: Thank you, Your Honor.
(Court adjourned at 4:45 p.m.)
[page 373] --- this page is used in the Transcript for the certification by the Court Reporter. In as much as this is not a legally certifiable electronic document, the page shall remain blank to signify that this particular version is for research and not for legal representations.
---- Transcribed from the record with notes by William E. Heidrick, Grand Treasurer General, Ordo Templi Orientis.
[page 375]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE CHARLES A. LEGGE, JUDGE
Grady McMurtry, William E. Heidrick, Phyllis Seckler, Helen Parsons Smith, William Breeze, Francis I. Regardie, James Wasserman, and Kenneth Anger, individuals, Ordo Templi Orientis, a corporation, and Thelema Publications, a business entity,
Plaintiffs,
vs.
Society Ordo Templi Orientis, a corporation, Thelema Publishing Company, a corporation, Marcello Ramos Motta, an individual, and Does I through X, inclusive,
Defendants.
CIVIL NO. C-83-5434
VOLUME I
PAGES 375 - 496
REPORTER'S TRANSCRIPT OF PROCEEDINGS OF COURT TRIAL
Wednesday, May 15, 1985
MORNING SESSION
450 Golden Gate Avenue
San Francisco, CAlifornia 94102
REPORTED BY:
Nancy J. Palmer
[page 376]
APPEARANCES:
FOR THE PLAINTIFFS:
Stuart I. MacKenzie, Esquire
80 Swan Way, Suite 301
Oakland, California 94621
FOR THE DEFENDANTS:
Law Offices of Mittel & Hefferan
By: Robert Edmon Mittel, Esquire
5 Milk St.
P.O.Box 427
Portland, Maine 04112
[page 377]
INDEX
VOLUME III
Examinations:
Witness: Direct Cross Redirect Cross
James Wasserman 378 442 447 451
Martin P. Starr 454
Plaintiff's Exhibits: For_Ident. In Evidence
131 Letter to Mr. Gunther. 409
Defendants' Exhibits:
60 Letter from Mr. Wasserman 432
to Mr. Motta.
[page 378]
Wednesday, May 15, 1985 9:15 o'clock a.m.
P R O C E E D I N G S - THIRD DAY
(Conference at the bench between Court and Counsel.)
MR. MacKENZIE: I'm ready, Your Honor.
THE COURT: You may proceed, Mr. MacKenzie.
MR. MacKENZIE: I call Mr. Jim Wasserman to the Stand, please.
I do apologize for the delay.
THE COURT: It's all right.
JAMES WASSERMAN,
called as a witness by the plaintiffs, having been first duly sworn, was examined and testified as hereinafter set forth.
THE COURT: Would you please be seated?
State your full name for the record and spell your last name, please.
THE WITNESS: My name is James Wasserman, W-a-s-s-e-r-m-a-n.
DIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Mr. Wasserman, where do you reside? [page 379]
A. New York City.
Q. Do you know of Aleister Crowley?
A. Yes, I do.
Q. When did you first become aware of him?
A. Approximately 1969.
Q. Did you study or read about him?
A. Yes. Rather extensively actually from that time on.
THE COURT: Would you please speak into the microphone?
THE WITNESS: Yes. Rather extensively.
BY MR. MacKENZIE:
Q. How extensively? What does that entail?
A. Well, I have read his books rather voraciously and at the same time working with some of his basic practices continuously.
Q. Were you employed at the time?
A. At the time I first encountered Aleister Crowley, yes.
Q. And were you later employed in the mystical area, shall we say?
A. Yes. At the same time my interest in Crowley also sparked an interest in books, and I went to work for Samuel Weiser.
Q. I'm sorry? [page 380]
A. I went to work for Samuel Weiser in New York, the largest publisher of the material.
Q. And what was your job at Samuel Weiser?
A. I was General Manager and Managing Editor.
Q. What kind of duties did you have?
A. I was responsible for all that concerned the operation of the publishing aspect of the business, including shipments, billing customers, and this kind of thing.
I was also involved in book production and the editorial aspect of the business.
Q. By "editorial, do you mean editing --
A. Yes.
Q. -- work?
A. Yes.
Q. Proofreading?
A. Proofreading.
Q. Do you know the defendant, Mr. Motta?
A. Yes, I do.
Q. How did you first come in contact with him?
A. One of the things I did at Weiser was open the mail. And I opened a letter from him to Donald Weiser concerning his manuscript on the Commentaries of Al {SIC sb. "AL" -def}.
I was very excited by this, because I knew that it was the Commentaries to "The Book of Law", and I [page 381] brought it to Mr. Weiser's attention and subsequently found the manuscript, read it, and began a correspondence with Mr. Motta.
Q. You did correspond with him?
A. Rather extensively, yes.
Q. I'd like to show you two documents, Plaintiffs' 66 and Plaintiffs' 68, and ask you to identify those documents?
A. Yes. These are both letters from Mr. Motta to me.
Q. Looking at Document No. 68, would you please look at the second page --
A. Okay.
Q. -- and read for us the portion that I have underlined in the bottom second most paragraph.
A. "I an mot about to contest anybody's
right to publish Crowley, but I must
admit that I am not about to do it
because I feel that legally I don't
have a leg to stand on."
Q. What was Mr. Motta suggesting with this -- what was your understanding he was suggesting with his letter? Was he asking for publication?
A. Well, in this book {SIC mb. "point" -weh} we hadn't decided to publish him. At this point he was making some inquiries as to his legal rights as to what we call "The Magickal Heir." {SIC sb. "the magickal heir" -def} [page 382]
Q. Looking at Document No. 66, if you would, I believe he is -- at the very top of that page he is talking about a "Grant."
Who is that person at the very topmost paragraph on page 4?
A. Grant was a well-published author who had claimed to be Outer Head of the Order, though it was increasingly common knowledge that he had been expelled by Mr. Germer in 1955.
However, he was in collusion with this John Simmons {SIC sb. "Symonds" -def}, who is mentioned here, and publishing the claims that he was Outer Head.
Q. I see. Now, you say that was common knowledge that Mr. Grant had been expelled from the OTO in 1955?
A. I would. Oh, yes.
Q. Proceeding down the page, would you read the following portion of the second paragraph that has been underlined?
A. "When an OHO dies without naming
his successor, this must be
elected by a unanonymous {SIC sb. "unanimous" -def} vote of
all national kings or representatives."
Q. Would you continue with that paragraph as it's underlined? [page 383]
A. Okay.
"I personally have no objection
to people working anywhere in
the name of OTO. Later on they
will vote on the new OHO. It
will certainly not be me since,
as I have said, I am not eligible."
Continue?
Q. Yes, please, the following paragraph?
A. "I finally felt I myself in an
unanonymous {SIC sb. "I find myself in an anomalous" -def}
position similar to
Mr. Germer who once complained
to me in a letter that he was
the only person with authority
to grant the OTO patents, et
cetera, but that he personally
disliked doing that work."
Q. Thank you. That's fine.
Did you undertake any acts for Mr. Motta at this time?
A. Not exactly at this time, but at this time when he was writing to me about his legal rights to literary collections, and over the next two years I would begin to look into this for him.
Q. And what did that involve? [page 384]
A. It involved making a study of the issues, collecting document, putting together a brief.
I went to see a lawyer on his behalf who was a copyright lawyer.
Q. I see. Did you ever meet Mr. Motta?
A. Yes. I did. I met him in Brazil in 1976.
Q. Let me ask you: The correspondence that you had with him, where was he living at that time?
A. Brazil.
Q. I see. When did you meet Mr. Motta in Brazil?
A. I believe it was February of 1976.
Q. And did you discuss the OTO?
A. Yes, I did.
Q. Did you request admission to the OTO?
A. Yes, I did
Q. Did he initiate you?
A. No, he did not.
Q. Do you know why he did not initiate you?
A. What he told me was that his authorization did not extend to the United States, that it was only operable in Brazil.
Q. And what year did he tell you that?
A. 1976.
Q. Are you familiar with Aleister Crowley's requirements of initiation set forth in the "Blue [page 385] Equinox"?
A. Yes, I am.
Q. Is there a requirement of something involving the Liber OZ?
A. No, there is not.
What brought about the conversation about the oTO between Mr. Motta and myself was that I had taken several Liber Oz cards to him, about 200. I has just printed them up and took them.
Q. Could you just explain to the Court what "Liber Oz" means?
A. Oh, Liber Oz is a very short political statement by Aleister Crowley in words of one syllable ant it's characteristically printed on a postcard like a piece of paper.
And I had just printed 500 of those.
Q. Please go on.
A. Mr. Motta said, "Well, you've just met the requirements for initiation into OTO."
And that is when I asked him to be in the OTO, and that's when he told me that his charted did not extend to North America.
Q. Well, what did he mean, "You've just met the requirements for initiation"; do you know?
A. No, I do not. [page 385]
Q. Are you familiar with the OTO rituals and so on?
A. Very much so.
Q. Is the publication of Liber Oz a requirement?
A. Not prior to the Minerval Degree, certainly.
Q. Does Mr. Motta's organization apply the Minerval designation?
A. No, it does not.
Q. Does Aleister Crowley's rituals or the "Blue Equinox" use the Minerval designation?
A. They most certainly do. The Minerval designation is the Fist grade of the Order and has been in existence ever since Reuss and Kellner, as far as I know.
Q. And what time of this century are we talking about with Reuss?
A. We're talking about -- he founded the Order in the early 1900s, at the turn of the century.
Q. And it's your testimony that Mr. Motta does not employ the Minerval?
A. No. He's dropped that from his curriculum as well as thoroughly rewritten the rituals. I can not even say they were revised. He reformulated the rituals.
Q. Well, in the OTO the Minerval is considered -- what is the importance of the Minerval? What is its importance? [page 387]
A. It's absolutely an essential experience of the OTO because it's the first -- Crowley described the attraction of the -- attraction to the solar system. It's the entrance level degree of the Order.
Q. Could you state your opinion as to whether the OTO operating without the Minerval -- if it would be changed?
A. It would no longer be Aleister Crowley's OTO.
Q. Did Mr. Motta ever discuss the subject of murder?
A. Yes he did.
Q. And what did he say?
A. What he said --
MR. MITTEL: Objection, relevance.
THE COURT: Just what is the relevance?
MR. MacKENZIE: The relevance, Your Honor, is -- I think it shows Mr. Motta's state of mind.
It will be shown later that he has used similar references in the initial Articles of the Constitution, such as the word "termination." I think it has a great deal of relevance.
THE COURT: Well, what's it got to do with this lawsuit?
MR. MacKENZIE: It also goes -- well, it goes primarily to his state of mind.
His testimony -- Mr. Motta will admit that he [page 388] can will people to death, and that he has done so.
THE COURT: Well, whether he does believe it or does not believe that, what is the relevance?
MR. MacKENZIE: I guess I'm attacking the credibility of Mr. Motta with this, Your Honor.
THE COURT: Well, he hasn't testified yet, so I am going to sustain the objection.
MR. MacKENZIE: May I ask the witness if he took the fear of murder seriously?
THE COURT: Well, if it was a direct threat to him by Mr. Motta, yes. That would be relevant.
MR. MacKENZIE: Well, I'm not sure if that was ever made.
BY MR. MacKENZIE:
Q. Was such a threat ever directed towards you?
A. Well, aside from his publishing my death notice in one of his books, he said that if Weiser did not meet his requirements for responsible Thelemic publishing, more deaths would follow.
MR. MITTEL: Objection.
THE WITNESS: He had claimed responsibility for the death of Mr. Weiser's brother.
MR. MITTEL: Objection. Mr. Motta --
THE COURT: Yes. Strike the last [page 389] portion.
The first portion with respect to his employer, Mr. Weiser, may stand on the question of bias of the witness.
BY MR. MacKENZIE:
Q. Had Mr. Motta made any requests of you before coming down to Brazil, as far as bringing things?
A. Yes, he did.
Q. Was one of the things that he requested you bring a gun?
A. Yes, he did.
MR. MITTEL: Objection; relevance.
THE COURT: Yes. What is the relevance?
MR. MacKENZIE: The relevance, Your Honor, I think this all runs together, that Mr. Motta has an extremely high amount of malevolence. And it's shown in his writings; it's shown in the way he talks.
THE COURT: Well, that may be, but how is that relevant to the lawsuit here which concerns questions of the ownership of property, rights to names ---
MR. MacKENZIE: Well, if nothing else, I think it shows two things, Your Honor. One his state of mind in making these libelous statements and ongoing statements. [page 390]
And secondly, I think it goes directly against the tenets of his religion.
THE COURT: But I'm not getting into this, am I?
MR. MacKENZIE: Well, only insofar as to see if Mr. Motta is, in fact, practicing that. If he's not practicing that, Your Honor, I don't think he can say he represents them.
THE COURT: Well, I'm going to sustain the objection at this time without prejudice until after Mr. Motta testifies.
BY MR. MacKENZIE:
Q. How long were you in Brazil with Mr. Motta?
A. Nineteen days.
Q. And when was it that you returned, approximately?
A. Toward the end of February, maybe the third week of February.
THE COURT: What year are we in?
THE WITNESS: 1976, Your Honor.
BY MR. MacKENZIE:
Q. HOw did your learn of Sascha Germer's death?
A. Mr. Motta forwarded to me a copy of a letter form Miss Seckler in which she had notified him of Mrs. Germer's death.
Q. Did Mr. Motta want you to do anything in regards to [page 391] that?
A. Yes. He wanted me to act as a liaison with the people in making arrangements to secure the library.
Q. I show you Plaintiffs' NO. 91 and ask if you could identify that, please?
A. Yes, I do. It's a letter from Mr. Motta again to me.
Q. Would you read -- on the second page would you please read the topmost paragraph of the bottom of -- I am sorry -- the top sentence of the bottom of the paragraph page 2?
A. "Please tell the two ladies" --
Q. Now, which two ladies are those?
A. This is Mrs. Smith and Miss Seckler.
Q. Yes.
A. "Please tell the two ladies
that I am quite willing to share
royalties on the AC half of literary
material published by you and on
the entire material published which
is only by AC on an equal basis.
But I make it an imperative condition
that they should unite, establish
themselves legally and defend their
rights and mine against thieves [page 391]
and impostors."
Q. Now did you react to that paragraph? What did you understand that to mean?
A. I understood it to mean that -- from my reading of the situation as that time the material belonged to the OTO and the OTO included those people and that Mr. Motta was acting properly in both recognizing other OTO members and being so good as to offer to share his portion of the royalties with them.
Q. And what did you do after you received this letter?
A. Well, in this case his letter asked me to send several other copies to Mrs. Smith and Miss Seckler.
And I did that and remained in touch with them, phoned Mr. Gualdoni, and tried to arrange a trip to get out to California.
Q. Let me show you Plaintiffs' No. 141, please, and have you identify that.
A. This is another letter from Mr. Motta to me I received just before I left for California.
Q. And what does that letter state at the bottom of the first page, continuing on to the second page?
A. It says:
"Helen has never had an OTO( patent" -- and this is the first time when he told me this.
It goes on to say that: [page 393]
"I stated otherwise in my
Manifesto for my own purposes."
Q. Now, is that the Manifesto that we were discussing yesterday afternoon?
A. Yes, the manuscript.
Q. The one that was written by Mr. Motta?
A. Yes, sir.
Q. In which he states that "Helen has an OTO patent"?
A. That's right.
Q. Did you ever ask him why he stated one thing for his own purposes and apparently a contradiction to what he felt?
A. That was the sort of question that would be very difficult to ask Mr. Motta. He constant -- he did it a lot and especially in this period.
Q. He did what a lot?
A. Shifted his point of view, said one thing to one person, meant another thing to another person.
He was a demon at subterfuge and also very confusing to follow, the machinations that I was expected to understand and his everchanging opinions on the people I was coming out to meet and act as his representative with.
Q. Going down that page, would you read the portion in the middle of that large paragraph? [page 394]
A. The middle, the underlined portion?
Q. Yes.
A. "That Mr. Weiser was a Jew and
that Mrs. Germer was also a Jew
merely compounds the outrage in
my eyes."
Q. Was Mr. MOtta anti-Semitic?
MR. MITTEL: Objection; relevance.
THE COURT: Sustained.
BY MR. MacKENZIE:
Q. Did Mr. Motta give you a power of attorney?
A. Yes, he did.
Q. Did you understand the purpose of that?
A. I understood the purpose of it from my point of view.
Q. And how did you understand that?
A. What I understood was that he was indicating a great deal of trust in myself to best represent him officially in the matter of the library.
I had no instructions from him on precisely what to do, but I felt that I was empowered to do what I felt was necessary --
Q. Were you a member of --
A. -- in his interests.
Q. -- Mr. Motta's SOTO? [page 395]
A. No, I certainly was not. He didn't have any in the organization in the United States at the period in which we are focusing.
Q. He had no SOTO members in 1976?
A. There was no SOTO in 1976.
Q. That came later?
A. Yes.
Q. Did you fly to California in regards to this?
A. I flew to California in regards to a business trip that I was undertaking as part of my job at Weiser, yes.
And I had been granted four days by Mr. Weiser to -- for personal reasons, so to speak, to look into this matter.
Q. Now, who was paying for that trip?
A. Mr. Weiser.
Q. And how long were you on the West Coast?
A. I was on the West Coast from about July 14th to about August 1st.
Q. Had Mr. Motta given you any money?
A. No.
Q. Had he instructed you to cooperate with the California people?
A. He certainly had. Also he warned me about them, to be very wary of them.
He was extremely distrustful of them, but he [page 396] ultimately wanted, in my understanding, cooperation with them.
Q. What did you do when you came to California?
A. I immediately met Helen Smith and Phyllis Seckler. We spent -- we had dinner that evening. We discussed the entire situation.
The next day we went out to West Point, met Mr. Gualdoni.
Q. West Point is in Calaveras County?
A. Yes, sir.
Q. Fine.
I show you Exhibit No. 49, and ask you if you will identify that, please?
A. Yes. This is the letter that I wrote to Mr. Motta after we had been to West Point two times and after I had extensive conversation with both Mrs. Smith and Miss Seckler and especially Grady McMurtry.
I wrote this letter and enclosed it with a letter that Mr. McMurtry was writing himself to Mr. Motta in a display of good faith and the kind of feeling that I had for Mr. McMurtry and the California OTO.
Q. What kind of feeling did you have about Mr. McMurtry?
A. I had an excellent feeling about Mr. McMurtry. I felt that he wa a true, sincere, dedicated brother. [page 397]
I felt that the ladies were the same.
I felt that we were really approaching the fire of the Golden Age of Thelema.
The library had been discovered; we had an active person in A.'.A.'., working with the person of Mr. Motta.
We had a potentially beautiful OTO acting under the leadership of Mr. McMurtry.
And with two of them cooperating, we had virtually unlimited access to Weiser in terms of being able to release more and more material.
It would be extremely easy to establish legal rights in court with Mr. Motta's and Mr. McMurtry's claims working in tandem as a united front.
And I felt that we were really moving into the Golden Age of Thelema.
Q. What do you state in here about Mr. McMurtry's credentials?
A. Mr. Motta had the impression that Mr. McMurtry was a fake, that somehow he was a clown, that the letters from Crowley were jokes and labels that Crowley had maliciously wrote and chartered him with in order to trick him up, make a fool of him.
I told him in no uncertain terms that this was not the truth, that in my opinion Mr. McMurtry's [page 398] credentials were absolutely real and so far superior to anything that Mr. Motta possessed that he had better recognize him for his own self-interest as well.
I might add that those words were repeated virtually verbatim to him by his own sole representative in the United States for the A.'.A.'., Mr. Gunther.
MR. MITTEL: Objection; move to strike. Hearsay.
BY MR. MacKENZIE:
Q. Well, speaking of Mr. Gunther, you say "his sole representative"?
A. Yes.
MR. MITTEL: Objection; foundation.
THE COURT: Well, I suppose he's getting to that now.
BY MR. MacKENZIE:
Q. Did you know Mr. Gunther?
A. Very well. I still know him to this day.
Q. And had you spoken or met him prior to coming out to California?
A. Yes, several times.
Q. Did you know what his relationship with Mr. Motta was?
A. I certainly did, because Mr. Motta published it. Mr. Motta wrote it to me in letters as well as in books. [page 399]
Q. And what was that relationship?
A. He was Mr. Motta's sole representative of the A.'.A.'. in the United States.
MR. MITTEL: Same objection, Your Honor.
And in addition to that, if he's relying on these books and letters they need to be produced under the Best Evidence Rule.
THE WITNESS: I have the letter from Mr. Gunther in which he states this even after the meeting with Mr. McMurtry.
THE COURT: I'm going to overrule the objection. I think your objection is going to the weight of the evidence, which I will consider later.
BY MR. MacKENZIE:
Q. Now, in here you state, quote -- this is in the first full paragraph on the first page:
"In all there were four full file
cabinets and about 15 to 20 cartons."
A. Uh-hun.
Q. I take it you had seen the archive material?
A. Yes. But by the time we had gotten there, most of it had been collected by Mr. Gualdoni and was already packed in boxes in storage. That's where the file cabinets were. But there were a great deal of thins left in the house still at that time. [page 400]
So, yes, I did see quite a bit of it.
Q. I see. Do you know if the material left in the house was ever joined together with what was in Mr. Gualdoni's office.
A. Yes. To the best of my knowledge, it was. We packed up a lot of it carefully and Mr. Gualdoni brought it over there then.
Q. Did you see him transport it all?
A. No, I did not see him take it all.
Q. So as far as you know, you took a portion of it and transported it?
A. I don't remember us actually taking cartons. I don't think -- no, because it wasn't proper at that time. No.
What we did, I think, was help clean up and pack.
Q. Would you have any estimate as to how many documents or pieces of paper we're talking about?
A. It's extremely difficult for me to give you an estimate, because it was in boxes. If the boxes contained papers, it would have been in the tens of thousands.
Q. After this letter of the 18th of July, did you write any other letters?
A. Yes I did. I wrote this letter from Grady's [page 401] kitchen, in fact.
And then I immediately took a plane to Los Angeles where I was beginning my sales trip.
I wrote to him on the 19th from my Los Angeles motel room.
I basically repeated what I said here, addressing the issues in a more personal way, answering some of the concerns of his, following some -- more of a personal discussion.
It was an additional report to this document.
Q. Did you receive any response from Mr. Motta?
A. Yes, I did. He cut me off at that point.
Q. I'm sorry? He cut you off?
A. Well, the response to that letter was to cut me off.
This is a different letter that you've just handed to me.
Q. Would you identify a document, Plaintiffs' Exhibit 137?
A. Yes. This is a letter that Mr. Motta sent to me from Brazil on July 10th.
He addressed it to me in care of Samuel Weiser, Incorporated, Mr. Don Weiser, in New York, so that Mr. Weiser could forward the letter to me in California. [page 402]
I received this letter on the 21st. The reason I know I received it on the 21st is I mentioned it to Mr. Motta in my letter of the 19th that this letter had been forwarded to me and it should be arriving one or two days.
Q. I see. Would you please read the portion underlined on the first page?
A. "Also I am now convinced that they
all participated indirectly in and
profited indirectly from the
robbery at headquarters.
"Further, being Mr. -- Mrs. Germer's
nextdoor neighbors, they allowed
the woman to starve to death."
Q. To you knowledge, was Mr. McMurtry or Miss Seckler ever living in West Point?
A. No.
Q. And looking a the second page, please, he writes:
"I want you to go to West Point
and retain a local lawyer to defend
my rights."
Did he send you any money for this?
A. No, he did not.
Q. And in the next paragraph he says:
"I demand only xeroxes of all [page 403]
papers and unprinted Documents."
capitalized.
A. Um-hum.
Q. Did he send you any money for that?
A. No, he did not.
Q. I believer you testified it would have been tens of thousands of documents.
Do you have any idea what that would have cost to copy?
A. At the time I made a really conservative estimate, I believe, of five hundred to a thousand dollars.
That's what I had written to him in my letter of July 19th. But I'm afraid I was a bit off the mark.
Q. What was your reaction to receiving this letter?
A. Well, this letter was an impossibly difficult letter to receive. It was so out of context with what I was actually experiencing that I had to feel that the extent of Mr. Motta's ignorance of the situation was -- made it impossible for me in any way, shape or form to go along with this kind of instruction, because I had new information.
I had spent four days with these people. I had answers to all of these concerns of Mr. Motta's one by one.
And I couldn't possibly do anything with this [page 404] letter. It was absurd.
Q. During this visit did you become a member of the OTO?
A. Yes, I did.
Q. And who initiated you?
A. Grady initiated me. And this is something I also informed Mr. Motta of, that I was doing this to prove to him by laying my spiritual life on the line that these people were legitimate people.
Q. Did he know, or did you tell him that you would be doing -- the primary purpose of your trip was to conduct business for Mr. Weiser?
A. Yes, he knew that.
Q. Let me show you Plaintiffs' Exhibit 131.
A. This is the letter in which -- from Mr. Motta to myself, which I say was the letter in which he cut me off.
This was in response to my letter of July 19th. I don't believe he would have received the letter I sent along with Grady on July 18th.
Q. Would you read the portion marked on the first page, second full paragraph?
A. "I do not want to hear from you
directly ever again. This is the
last letter I write to you." [page 405]
Continuing with what you've highlighted:
"And you will fulfill your duties
as my legal representative as
per the power of attorney I sent
you by having all materials in
the Thelemic library xeroxed."
Continuing with what you've highlighted:
"You spineless piece of turd."
Q. Did he often use obscenities?
A. Yes.
Q. He also says he will inform Frater KN of the contents of this letter.
Who is "Frater KN"?
A. That's Stanley Gunther {SIC sb. "Daniel Gunther" -def}, my superior.
Q. Now, when you say your "superior," what do you mean by that? In the A.'.A.'.?
A. In the A.'.A.'., yes. He was Mr. Motta's representative.
Mr Motta was my instructor at this time, so he was obviously my superior. But Mr. Gunther was the highest ranking American representative of Mr. Motta.
Q. Now, do you know how many other people were in Mr. Motta's A.'.A.'. in the United States?
A. At the time we're speaking of, I believe -- At the exact period of time that we're speaking of, there were [page 406] about three, at least three.
Q. Three people for the entire United States?
A. He had just started. There may have been more. There may have been five. It grew in the later period.
Q. At the top of the next page he writes:
"You tell me Mrs. Germer was
insane."
Is that something that you had previously written him?
A. Yes. From my conversations with Miss Seckler, Mrs. Smith and Mr. McMurtry and Mr. Gualdoni, it was quite evident to me the woman was out of her mind.
MR. MITTEL: Objection; hearsay. Move to strike. And lack of foundation.
THE COURT: May I have the last part of the answer, please?
THE WITNESS: I didn't mean to be disrespectful in referring to Mrs. Germer, but -- oh, I'm sorry.
(The record was read as requested.)
THE COURT: I will sustain the objection.
MR. MacKENZIE: Your Honor, Mr. Gualdoni is the Coroner up in Calaveras County. It think he might have some authority to --
THE COURT: Oh, I think enough testimony on the subject has been given. It's repetitive. [page 407]
MR. MacKENZIE: All right.
BY MR. MacKENZIE:
Q. Now, if you would continue reading in that paragraph there, please.
A. Again the highlighted part?
Q. As it's highlighted, yes.
A. "As someone who has been thought
crazy by your beliefs and mine
and who has thought himself
crazy and who has been crazy" --
Q. Had he ever told you he had been crazy?
A. I don't remember his telling me prior to this that he had been crazy.
I had seen his diaries, but he never told me that.
Q. Okay. Do you think he is crazy?
MR. MITTEL: Objection; foundation.
THE COURT: Sustained.
BY MR. MacKENZIE:
Q. Have you read a number of Mr. Motta's books?
A. Yes.
Q. And you testified you had spent one or two weeks with him in Brazil?
A. Yes.
Q. Based on those perceptions, would you say he's [page 408] crazy?
MR. MITTEL: Objection; foundation.
THE COURT: I am going to sustain the objection.
BY MR. MacKENZIE:
Q. Would you read the highlighted portion of the bottom paragraph, please?
A. The very bottom paragraph?
Q. Beginning with "You have the power of attorney from me."
A. Yes.
"You have the power of attorney
from me. You had ample instructions
to fulfill it or what is left
of it. Fulfill it or not."
Q. What did you interpret "Fulfill it or not" to mean?
A. By this time we had just -- you know, it was -- he was essentially telling me it didn't matter to him what I did.
Q. Continue reading, if you would.
A. "One way or another, I repeat,
I do not wish ever to hear
from you directly again."
Q. Thank you.
Do you know if this power of attorney -- what [page 409] happened to this power of attorney?
A. I have seen a letter in which Mr. Motta gave it to Mr. Gunther on July 27th, the day after writing this to me.
I know that within a matter of weeks from receiving this, Mr. Gunther asked me for the return of the power of attorney.
Q. I'd like to show you Plaintiffs' Exhibit No. 131.
MR. MacKENZIE: This is a document, Your Honor, that Mr. McMurtry testified to having received. It was a question of foundation.
Mr. Wasserman has established that Mr. Gunther was Mr. Motta's American representative.
I would at this time ask that it be entered.
THE COURT: It may be admitted in evidence.
(Plaintiffs' Exhibit 131 previously marked for identification was received in evidence.)
BY MR. MacKENZIE:
Q. Well, how much longer were you in California?
A. I traveled from Los Angeles to San Francisco on July 26th, where I met Daniel Gunther and Richard Gernon. Mr. Gernon was Mr. Gunther's student. He met Mr. Gunther through me. [page 410]
And I had requested them to come out to California to verify my judgments of Mrs. Smith, Miss Seckler and Mr. McMurtry.
I knew that Mr. Motta felt these people were capable of fascination and magical attack in a very subtle way, and I wanted to best discharge my responsibility to him by bringing in other witnesses that he would trust to either confirm or deny my opinions.
And thank god they came.
Q. Do you know what their reactions were?
A. Their relations were virtually identical to mine. I have a letter from Mr. Gunther --
MR. MITTEL: Objection; hearsay.
THE WITNESS: -- written July 30th in which be confirms my opinion verbatim.
MR. MITTEL: Motion to strike the answer.
THE COURT: Yes. Objection sustained.
BY MR. MacKENZIE:
Q. Let me ask you this: Do you know if Mr. Gunther and Mr. Gernon were initiated into the OTO?
A. Yes, they were. Along with myself.
Q. And who initiated them?
A. Mr. McMurtry. [page 411]
Q. Thank you.
Out of the amount of time that you were here in this State, how much time did you spend on this matter versus for Mr. Weiser?
A. Well, I spent four full days on this matter when I first came, which I scheduled with Mr. Weiser.
Any time I spent after that was strictly my time in the evenings when I was working in San Francisco.
I was initiated, I believe, on a Tuesday night.
Q. Yes. WEre you present at the SOTO versus Weiser trial in Maine last year?
A. Yes, I certainly was.
Q. Did Mr. Motta claim to be the Outer Head at that trial?
MR. MITTEL: Objection; hearsay.
MR. MacKENZIE: That's this judgment that's been submitted.
THE COURT: Yes. I think I'm going to overrule the objection.
MR. MITTEL: But I was -- what I should say is the transcript is available. Mr. Motta is here. This witness is not the person to elicit that information from. {page 412]
MR. MacKENZIE: Well, it nothing else, it's a statement made in a judicial proceeding, Your Honor. If it's nothing else, it's a statement. I think he is competent to testify.
THE COURT: Well, if he is going to testify as to what the testimony was that is the basis for the objection.
MR. MacKENZIE: Only on this point, Your Honor.
THE COURT: I'd prefer to have the testimony of the Main action; I mean a transcript.
MR. MacKENZIE: Well, I suppose --
THE COURT: The proper foundation for the objection is the best evidence. There is a transcript, and that is what you have to rely on to prove what happened in the prior judicial proceeding.
MR. MacKENZIE: Well, what I'm getting at is this, Your Honor. Mr. Motta claimed to be the Outer Head and he had never previously done so. And I don't wish to inquire --
THE COURT: Well, okay. I mean, you can ask the witness whether he had any knowledge as to whether Mr. Motta has made that claim before, --
MR. MacKENZIE: All right.
THE COURT: -- whether Mr. Motta has [page 413] claimed that title before. I think that is valid testimony.
BY MR. MacKENZIE:
Q. Did you ever hear Mr. Motta claim to be the Outer Head of the Order?
A. I had heard, to my surprise, Mr. Motta make that claim in Maine for the first time.
Prior to that in countless episodes he denied that very claim, excluded himself from the possibility of ever making that claim, in fact.
Q. You stated you are an OTO member?
A. Yes, I am.
Q. Are you active in New York?
A. Yes, I am.
Q. What is the status of the OTO in New York?
A. We have lodge with several satellite groups, camps and chapters, which we have given birth over the years. We have about 80 members, I would say, in the area of these different camps and chapters.
We're fully equipped to maintain up to the PI actually and have initiated into the Fifth Degree with Mr. McMurtry's supervision.
Q. The PI Degree, does that mean the Sixth?
A. No. The PI Degree --
Q. Oh, that's right. [page 414]
A. -- is the Degree following the Fourth Degree, and it is the conclusion of the Man of Earth Triad of the Order.
Q. I see.
A. We have fully activated the Man of Earth Triad in New York City.
Q. I would like to read to you several quotations that Mr. Motta has printed:
" The following individuals were at
some time associated with either
A.'.A.'. or the OTO. Or if not,
publicly claimed such association.
They were either lying or have
been expelled from the OTO or
lost contact with the A.'.A.'. for
conduct unbecoming."
You testified you're both a member of the OTO and A.'.A.'.. Do you remain a member of the A.'.A.'.?
A. Yes, I do, sir.
Q. Have you ever been expelled from either organization?
A. No, I have not.
Q. He states:
"James Wasserman disobeyed all his
instructions and delivered the [page 415]
property into the hands of thieves,
has been instrumental in the
piracy of OTO copyright."
Do you believe that's true?
A. I believe it's absolutely untrue. On the contrary.
I have made every effort to see that the OTO copyright is respected.
Q. ARe you familiar with the "Equinox" Volume 5B No. 2 {SIC sb. "Volume V, No. 2" -weh} put out by Thelema Publishing Company?
A. I am familiar with the conceding {SIC mb. "conceit" -pla} of calling that an "Equinox", yes.
Q. With the what?
A. I refer to that as a pseudo "Equinox".
Q. And do you know who wrote this book?
A. Yes. Mr. Motta.
Q. Does he discuss you in it?
A. Yes, he does.
Q. I'd like to --
MR. MacKENZIE: I do not have another copy of this, Your Honor.
THE COURT: That's all right.
BY MR. MacKENZIE:
Q. If you would --
A. "An expropriation of" --
Q. What page are you on in that book? [page 416]
A. Page 397.
Q. Thank you.
A. "An expropriation of James
Wasserman, a fellow with a
singular lack of moral fiber."
Moving on:
"I still remember my letter to
the late Wasserman."
Q. I see. Do you believe that a person unfamiliar with you would -- what do you think would read into that?
MR. MITTEL: Objection; relevancy, foundation.
THE COURT: Sustained.
BY MR. MacKENZIE:
Q. What has been you personal reaction to having this writing of Mr. Motta you just read?
A. He has considered -- continued to mention my name in this type of libelous context in nearly every book he's published since this one.
He's called me dead, a thief, a liar, constant, year by year.
Q. He's done that in more books than this?
A. Oh, yes.
Q. How many other books would you say? [page 417]
A. Well, I would -- you know I would have to say there are probably at least six others of five others that --
MR. MITTEL: Objection; Best Evidence.
THE WITNESS: -- he has called -- they were clients'; books, Mr. Mittel, --
THE COURT: It's foundational.
The objection is overruled.
BY MR. MacKENZIE:
Q. Go ahead.
A. -- continuing publication after publication.
Q. Okay.
A. They started in 1979. So it's gone on through his most recent book published in 1984. And it's been five years.
Q. And what's the title of his most recent book?
A. "Magick Without Tears."
Q. And what were your personal reactions?
I'm talking physical, if you had any.
A. I would say that it caused a nervous stress. It's caused a great deal of emotional anguish and a great deal of wasted energy. His claims -- the claim which angers me the most and which is why I joined this lawsuit was his claim about my working on the book which he's repeated several times, which I never touched, because that is my profession and he hasn't -- [page 418]
Q. What is your profession?
A. My profession is publishing; my profession is book design, packaging, edition, book production. Okay? This is my field, my industry, my life. And I need -- and Thelemic publishing particularly is my specialty.
And he accused me of working on a book that I find utterly reprehensible, entirely unThelemic and another act of lunacy equal only to his own.
And I had nothing whatsoever to do with the publication of that other book.
Q. Are you familiar with any of he SOTO rituals?
A. This -- I am somewhat familiar, having had one been described to me by someone who underwent the rituals.
Q. And can you compare these rituals with the ritual of Aleister Crowley and the "Blue Equinox"?
MR. MITTEL: Objection; hearsay. If he's relying on what the other person told him as the basis of his knowledge.
THE COURT: Oh, I think he can compare them on the basis of his knowledge.
Objection overruled.
THE WITNESS: There's absolutely no similarity.
BY MR. MacKENZIE:
Q. Have you ever seen any evidence that Mr. Motta is a [page 419] member of the OTO?
A. No.
Q. Direct initiatory evidence?
A. Are you asking me if I've seen a certificate or a charter?
Q. Yes.
A. No.
Q. Thank you.
Have you remained in the publishing field since beginning with Samuel Weiser?
A. Yes, I have.
Q. And what is you position at this time?
A. I am now the Operations Manager of another cult {SIC sb. "occult" -pla -def} publishing company.
Q. May I show you Plaintiffs' Exhibit No. 77, previously been entered.
Do you recognize that?
A. Yes, I do.
Although I think I have two copies of page 3 here. And I don't have a copy of page 2.
THE COURT: What's the number?
THE WITNESS: 77.
BY MR. MacKENZIE:
Q. Is this something that Mr. Motta has prepared?
A. Yes. [page 420]
Q. Do you know in what conjunction he prepared that for?
A. Yes. Weiser at this time had agreed to publish his -- what will later become this book, and --
Q. I'm sorry. When you say "this book,' what book are you talking about?
A. What would later become his "Equinox 5B", {SIC sb. "'Equinox' V, 2" -pla} his commentary No. 65. And this was the manuscript for typesetting for the OTO Manifesto which he wanted to appear in the book.
Q. Is this the Manifesto in which he recognizes Grady McMurtry?
A. Yes.
Q. And what kind of recognition does he have of Grady McMurtry based on that second paragraph?
A. Well, he states that Mr. McMurtry, Ninth Degree OTO by patent of documented Ninth, Tenth, Eleventh Degree OTO, duly ratified by Saturnus, Tenth Degree OTO. {SIC}
Q. Is Saturnus the karl Germer --
A. Yes.
Q. -- who did the ratification?
Final question: You testified that you had formerly edited some of his works and that you have read some of the works that he's published since that time.
A. Yes. [page 421]
Q. Based on that knowledge, can you briefly state or qualify what Mr. Motta is writing about the OTO -- is he staying consistent?
A. In his publishing of Aleister Crowley, what I detect is -- again from a professional understanding of the process involved in preparing a manuscript or a book, that process requires an editor -- the manuscript is really the first part of a book.
And by the time the actual book is published, it's a far different entity. It has subjected itself to external criticism and review, to an analysis of consistency and to a back-and-forth interchange between author and editor, which gives it a certain professionalism to publishing and eliminates unnecessary mistakes --
Q. Yes.
A. -- which are bound to flow, anything that is short -- logic, and all that stuff, ask other people to look at it. Just because I know some of this stuff --
Q. Yes.
A. -- his work has deteriorated immensely.
Q. In what manner?
A. He makes -- it is impossible to read Crowley in a Mr. Motta book any longer.
By the time -- he interferes so many times [page 422] within the sentences that there is no coherence to Crowley's writings any longer.
MR. MacKENZIE: Thank you very much.
No further questions.
MR. MITTEL: Your Honor, could I have a few minutes before I start my cross-examination?
THE COURT: I guess we might as well take a ten-minute recess, ladies and gentlemen.
You may step down for a few minutes, Mr. Wasserman.
(Brief recess taken.)
THE COURT: You may proceed, Mr. Mittel.
MR. MITTEL: Thank you, Your Honor.
CROSS-EXAMINATION
BY MR. MITTEL:
Q. Good morning, Mr. Wasserman.
Towards the end of direct examination you were saying that one of your concerns about the alleged defamatory remarks was some commentaries about you becoming involved in some publication of a book that you hadn't worked on.
A. Yes, sir.
Q. Let me show you Exhibit {SIC sb. "Equinox" -def} 5, No. 3, entitled "The Chinese Text of Magic Mysticism" by Aleister Crowley published by Thelema Publishing Company in 1980, and ask [page 423] you to read, if you will, the last sentence on page 459.
A. Okay.
"No doubt it is felt that that
condition {SIC sb. "addition" -def} would weaken the
stand of the venous poison pen {SIC instead of "venous poison pen" sb. "Phoenix possibly" -def]
of James Wasserman, what we {SIC sb. "by James Wasserman who we" -def}
have been told now about the {SIC instead of "now about" sb. "is now" -def}
he-man pen size of this parrot {SIC instead of "he man pens size" sb. "amanuensis" -def}}."
Q. Now, is that the material that you were referring to?
A. Some of it, yes, sir. There is another reference in another book that I am a mystic {SIC}. He said it in a Thelema Publishing book, in a later book.
Q. Do you make reference anywhere in your Complaint to either of those statements?
Would you look at the Complaint, and in particular the pages on which the libels, the alleged libels, are set out?
A. Well, see, I didn't have this document. This was done here in California by the Order. And I didn't realize that that had been excluded about he libels; I hadn't been excluded in any of the other --
Q. So certain --
A. We also -- we didn't say in my Complaint that he said I was dead. [page 424]
Q. Let me just ask you: Is the material that you just read and the similar material in the other book referred to anywhere in your Complaint?
A. No, I don't think so.
MR. MITTEL: That being the case, Your Honor, which I wasn't sure when he testified, I move to strike his answer to that question --
THE COURT: Well, --
MR. MITTEL: -- and all of the testimony --
THE COURT: Well, the testimony can stand.
MR. MacKENZIE: Your Honor, the libel has been done since the Complaint was filed --
THE WITNESS: He published --
MR. MacKENZIE: -- after we filed this Complaint.
THE COURT: Well, I'm going to leave the record where it is at the moment.
BY MR. MITTEL:
Q. Mr. Wasserman, you testified about a letter that Mr. Motta wrote you in 1974 in which he told you that he wasn't going to contest anybody's right to publish Crowley.
A. Yes.
Q. Do you remember that? [page 425]
He when on to say in the letter:
"What is my legal position as
'Magickal Son' from the point of
view of copyright laws? I
wonder."
Do you remember that?
A. Yes.
Q. Did you, as a result of the inquiry in this letter, undertake to conduct an investigation of that answer for him?
A. Yes. Over the next several years I certainly did.
Q. And over the next several years, did you gather a lot of information that you didn't previously have?
A. Yes. WE gathered together cooperatively, sure.
Q. The Aleister Crowley will being one such document?
A. Yes, sir.
Q. The Karl Germer unprobated will being another such document?
A. Yes, sir.
Q. You also consulted copyright counsel in New York; is that right?
A. Yes.
Q. And Copyright counsel in New York told you that Mr. Motta did, indeed, have a copyright infringement case that could be brought against publishers who are [page 426] publishing Crowley material without permission; is that correct?
A. What he said at the time --
MR. MacKENZIE: Objection. I think that's hearsay.
THE COURT: Well, I think -- that's not really hearsay. I don't think we should be involved in what could be proved or said by the copyright counsel, but simply Mr. Wasserman's knowledge of what the circumstances were at that time.
So I'm going to overrule the objection.
BY MR. MITTEL:
Q. Please answer.
A. Okay. What we were discussion primarily at that time -- we were focusing -- the focus at that point was a legitimate claim to ownership of copyrights.
And, yes, he said that for a hundred thousand dollars and a great deal of legal research, transcontinental and -- to Europe, that this could be probably, in his opinion, secured.
Q. Was also some of the things that you learned, one of the documents that you discovered from Mr. Motta while you were conducting this research the fact that Kenneth Grant had been expelled -- [page 427]
A. That's --
Q. -- by Karl Germer?
A. No. That's something I knew earlier. That was published by Francis King, I believe, two times in 1973. He published it in the secret rituals, and I believe he published it in a book called "Ritual Magick" in England about 1972.
Q. Do you know if Mr. Motta had ever seen those books?
A. I know he saw them later during the course of our investigation, yes.
Q. He was living in Brazil, wasn't he --
A. Yes, he was.
Q. -- when he wrote this letter in 1974?
A. Yes, he was.
Q. Do you know if those books were published in Brazil?
A. Those were certainly not published in Brazil.
Q. Now, you also testified that you asked Mr. Motta if he would initiated you into the Ordo Templi Orientis?
A. Yes.
Q. And he told -- before you had asked him that question, had you also discussed with him what you had learned about Mr. McMurtry and his activity on behalf of the Ordo Templi Orientis in California?
A. I don't really remember discussion Mr. McMurtry [page 428] with him at that time. I never met Mr. McMurtry. I was somewhat aware of his claims, general knowledge in the whole community. But it was very peripheral at that point.
Q. Well, had you read about Mr. McMurtry's claim in "Gnostic", G-n-o-s-t-i-c {SIC sb. "Gnostica" -weh} News published by Lewellyn (phonetic)?
A. Yes, I had briefly reviewed it. My interest was -- at that period of time was A.'.A.'.. And my interest was in Mr. MOtta. I had reviewed Mr. McMurtry's claims.
Q. And as another portion of your investigation that you were conducting for Mr. Motta after 1974, had you, indeed, given some consideration to Mr. McMurtry's position?
A. Had I given consideration to his position prior to reading him? Is that you question?
Q. Yes, sir.
A. Not really.
Q. But you had thought about it?
A. Not really. I mean I was aware that he was publishing. And I wasn't very concerned with the OTO at all.
So I didn't really think too much about Mr. McMurtry.
Q. You were aware that he was functioning as a member [page 429] of the Ordo Templi Orientis?
A. Yes, I was.
Q. In California?
A. Yes, sir.
Q. And you told that to Mr. Motta when you were in Brazil?
A. I may have sent him a Gnostic Article. I believe I did in one of my letters.
Q. Before you went to Brazil?
A. Yes.
Q. So then it stands to reason that Mr. Motta knew of Mr. McMurtry's activity when you went to Brazil?
A. Yes, sir.
Q. And didn't he say to you that the reason he would not initiate you in Brazil was because you were a citizen of the United States and there was an ongoing Ordo Templi Orientis chapter in the United States and that you should seek initiation from them?
A. That is exactly what he told me, in addition that he was not chartered to do it himself, because I was a U.S. citizen.
Q. But he didn't tell you, for instance, that he didn't have the power to initiate Brazilian citizens?
A. Oh, no. On the contrary, he told me that he did have the power. [page 430]
Q. And, in fact, he had lodge in Brazil --
A. Yes.
Q. -- with a number of members?
A. Yes.
Q. and that this lodge was of the Ordo Templi Orientis?
A. Yes.
Q. The rituals of the Ordo Templi Orientis, "Blue Equinox" and other controlling, governing documents teach that they're to be kept secret and confidential; is that right?
A. Yes, sir.
Q. And they remained secret and confidential until their publication by Francis King in 1972?
A. '73, I believe.
Q. And thereafter what they said was available to anybody?
A. Well, yes and no. If you -- and you, I know, have reviewed Francis King's material. You can see that it's very hieroglyphic in magnitude of the degrees.
So it was really available, but without the keys to what the long series of initial strings they're referring to it would be very hard to use those rituals.
Q. You also, I think, made reference to Aleister Crowley's Ordo Templi Orientis, did you not? [page 431]
A. Yes, I did.
Q. It's not Aleister Crowley's; in fact, it never was Aleister Crowley's Ordo Templi Orientis, was it?
A. It was reformed by Aleister Crowley, but it was the first -- he called it the Magickal Order of Antiquity, to accept "The Book of the Law."
Q. But the point is it's an organization that, so to speak, belongs to the members. There just happened to be somebody who is Outer Head of the Order?
A. Crowley's our prophet. He's dead, so he can no longer the the Outer Head. He is our prophet.
Q. Now, I understand that. But what I'm asking is: While the Outer Head is above, the Outer Head doesn't own the Order?
A. Oh, no. No.
Q. You testified that you went to California on behalf of Mr. Weiser and also on behalf of Mr. Motta.
A. Yes, I did.
Q. Do you know what Mr. Motta was doing for a living, how he was employed when you went to California?
A. Yes. He was an engineer.
Q. In Brazil?
A. Yes, sir.
Q. Do you know what he was earning?
A. No, I don't. [page 432]
Q. Did you ask him to send you money?
A. No, I don't believer that I did.
Q. Now, shortly before you went to California, did you send Mr. Motta a letter that's been marked as Defendants' Exhibit 60?
A. Yes, I did.
Q. And that's your signature at the bottom?
A. Yes, it is.
Q. Would you read to the Court, please, the highlighted material?
A. "It is clear that Phyllis McMurtry
cannot be trusted from that
letter."
Q. And Phyllis McMurtry is the same Phyllis Seckler who sits at the plaintiff's table?
A. Yes.
MR. MITTEL: Your Honor, defendants offer Defendants' 60. That's one of the contested exhibits, although I don't think there's going to be an objection.
MR. MacKENZIE: No objection, Your Honor.
THE COURT: Has it been separately marked?
MR. MITTEL: Yes.
THE COURT: Exhibit 60 may be admitted into evidence. [page 433]
(Defendants' Exhibit No. 60 previously marked for identification was received in evidence.)
BY MR. MITTEL:
Q. So when you had the instructions from Mr. Motta that you were to cooperate with the people in California and, in particular, the ladies, as you called them, you shared his concern also that he reflected when he warned you about them?
A. Oh, absolutely.
Q. Now, after the trip to Calaveras County and the gathering of documents, or at some point while that was going on, you had a discussion with Mr. McMurtry and Miss Seckler about cataloging and photocopying the documents, did you not?
A. Yes, I did.
Q. And you made some type of arrangement with them whereby you were going to come back from New York and do all that?
A. Yes.
Q. And you were going to make those copies for Mr. Motta?
A. Yes.
Q. And you kept that intent in mind after you had gone back to New York? [page 434]
A. Yes, I did.
Q. And you still had it in mind after you had received Mr. Motta's letter telling you that you'd been cut off?
A. Yes. I still had it in mind.
Q. And, in fact, even after you had read the commentary in his letter that he didn't care what you did, as you put it, with the power of attorney; is that right?
A. Did I put it that way, or did he put it what way?
Q. I think that's the way you described it.
A. Okay. Yes, --
Q. You still --
A. -- I was intending --
MR. MacKENZIE: Objection on the grounds of relevancy, Your Honor.
I think that the defendant is trying to make his case in chief of the conversion or breach of duty by Mr. Wasserman. He's not really talking impeachment here.
THE COURT: Well, it's relevant to the subject matter of what you asked him about his activity in California and the termination of his relationship with Mr. Motta.
I think it's relevant to the direct examination. [page 435]
BY MR. MITTEL:
Q. And if Mr. McMurtry or Miss Seckler or Mrs. Smith said that there was no such conversation and there was no such agreement, they would not be telling the truth, would they?
A. They would have been interpreting our conversations a lot differently than I did.
Q. Now, you also testified that -- let me withdraw that question.
As the time past {SIC sb. "passed" -weh} from May of 1976 through June and into July, Mr. Motta began to express concern to you about the reliability of the members of the Ordo Templi Orientis in California?
A. Yes.
Q. And if you can summarize, what was the nature of his concern?
A. It would change a good deal, but the -- between supporting him and telling me to trust them and saying that they couldn't be trusted and he was concerned, the primary issues he would raise would be Sascha's -- Mrs. Germer's accusations against Phyllis' daughter in the library thievery.
He was very concerned about how the two parts boxes of the Germer Library, which we later understood how that happened {SIC}. [page 436]
And he was concerned that they hadn't done enough legally to establish their right as OTO.
Q. Would it be inaccurate to say that he didn't think they were trustworthy?
A. Depending on the letter. I would rally have to qualify that answer, depending on the letter.
Q. But --
A. He seemed to have a great deal of trust in Helen Parsons Smith. That seemed to be the theme to me that ran through everything: trust Helen; do not trust Phyllis.
Q. But as for Mr. McMurtry and Miss Seckler, there was some concern about their trustworthiness?
A. He said very little about Mr. McMurtry. He left that open, because I think he knew him less than he knew the ladies.
Q. But ultimately he came to share your concern expressed in Defendants' Exhibit 60 about the trustworthiness of Miss Seckler; is that right?
A. The letter was written before I met her, yes.
Q. And ultimately Miss Seckler took the library and prevented you from copying it; is that right?
A. Yes, sir.
Q. And ultimately, in fact, either by her doing or someone else's doing, the library disappeared; is that [page 437] right?
A. Yes, sir.
Q. And, in fact, you think it was by her doing that the library disappeared, don't you?
A. I have thought that over the years. I don't think it any longer.
I certainly thought that when I deposed myself to you, or when you took my deposition.
Q. And during the trial in Maine also; is that right?
A. I don't know if I said it in Maine. I'm not sure. I know I was strong in 1983 about that -- I have since had contact with Phyllis Seckler -- prior to my deposition.
And I always had divided feelings about her at that time, because -- letters also say that I liked her a great deal. But I was horrified by her sequestering of the library and extremely suspicious when she claimed that it had been taken from her.
Q. And so ultimately, of course, Mr. Motta's concerns were justified?
A. In a painful kind of way for all of us, yes.
Q. Let me read to you your testimony during the trial in Maine --
A. All right.
MR. MITTEL: -- at page 231 and 232 of the [page 438] transcript, Your Honor.
"QUESTION: Now, you said that the
library was put in some alternate
storage site?
"ANSWER: To my knowledge.
"QUESTION: And it was then
stolen?
"ANSWER: To my knowledge, as
they say.
"QUESTION: And you believe
that Phyllis Seckler stole it:
is that right?
"ANSWER: I may or may not.
"QUESTION: Well, you have
testified under oath before
that you believed that, did
you not?
"ANSWER: I testified under
oath that I could conceive of
that as a possibility, yes.?
BY MR. MITTEL:
Q. Was that your testimony in Maine?
A. Yes, it sounds like it.
I don't think that at that point I accused her. I think I said I could conceive of her having done it.
Q. The OTO Manifesto, that is Plaintiffs' Exhibit 77, about which you've testified.
A. Is this the a manuscript we're discussing, the manuscript -- [page 439]
Q. So there's no confusion, let me show it to you.
A. Yes, I recognize it.
Q. Now, this is a draft; am I right?
A. Yes.
Q. Was it published in this form?
A. No. Weiser never did to book.
Q. Let me show you Defendant's Exhibit 64, which is a letter dated July 19, 1976 from you to Mr. Motta.
Let me ask you to read from what is marked as page 4.
MR. MITTEL: Although in the way the exhibit is now compiled, Your Honor, it's on page -- page 7.
THE WITNESS: Okay.
BY MR. MITTEL:
Q. And I've highlighted what I'd like you to read.
A. Okay.
"I have told Grady and Phyllis
that if there be a great conflict
between you and them, I would be
forced to withdraw from our
association."
Q. There is more, I believe.
Q. Oh, I'm sorry. This is the covering.
Q. Let me see. [page 440]
A. Down here, too?
Q. Thank you.
Did you -- or was there a great conflict between Mr. Motta and -- on the one hand and Mr. McMurtry and miss Seckler on the other?
A. Well, sir, remembering the chronology of the thing, the first conflict was between Mr. Motta and myself. He cut me off in the July 26th letter.
And, of course, there was a later conflict between them, but I --
Q. And you did not withdraw from Mr. McMurtry's and Miss Seckler's association, did you?
A. Oh, no. Had Mr. Motta not written me his July 26th letter, I probably would have.
Q. Well, you certainly admired Mr. Motta after you received his July 27th letter, didn't you?
A. "Admired" him?
Q. Yes, sir.
A. I have had -- I have very divided feelings about Mr. Motta. I don't remember -- at the time I received the letter, I still admired him.
Q. And you continued to admire him after that, didn't you?
A. My memory of our relationship --
Q. Let me show you Defendants' Exhibit 67, again. [page 441]
Let me ask you to read the top paragraph on Page 2, if you would, please?
A. "I must explain something to you
about Marcelo Motta and my
relationship with him. He has
helped me more than any single
individual in my life. I owe
him and feel for him the
greatest of loyalty, friendship
and respect. Also in my
estimation, he is not deluded
in calling himself the Grand
Translator {SIC in place of "Grand Translator" sb. "Praemonstrator" -def} of the A.'.A.'.. The
fact that he has cut off with
me does not mean that he has
given me up."
Q. And, in fact, when he cut off with you, all he did was say he would have no direct dealings with you; you must deal with his association, Mr. Gunther?
A. Yes.
Q. So he had not put you in a position where your only alternative was remaining loyal to Mr. McMurtry and Miss Seckler?
A. No. I was loyal to Mr. Gunther and Mr. McMurtry and Miss Seckler, et al., and Mr. Motta. There's not [page 442] very much I said in that letter that I do not refute today except that I no longer share the same opinion about the Translator {SIC in place of "Translator" sb. "Praemonstrator" -def} of the A.'.A.'..
Mr. Motta has done a great deal for me.
Q. I think you said that you were employed by Samuel Weiser?
A. Yes, sir.
Q. From when until when?
A. 1972, I believe, to '77.
Q. And do I understand that it's your opinion that that company has misused Aleister Crowley copyrights?
A. No. As I said to you before, Mr. Mittel, I don't feel that way.
With the exception of Mr. Motta's book, everything else that had been done by Weiser up to that time was public domain with the exception of things that were being published in England and distributed by Mr. Weiser in the United States.
He profited from the situation, but he never directly profited from --
MR. MacKENZIE: Your Honor, I don't see any relevance in bringing the Weiser Publishing Company into this. That issue has been settled to the detriment of the defendants in Maine.
THE COURT: The objection is overruled. [page 443] I'll let the question and answer stand.
BY MR. MITTEL:
Q. Let me read you a question and answer from the transcript of the trial in Mane, page 600:
"And you also thought that
Mr. Weiser was engaged in
the legal abuse of OTO
copyrights.
"ANSWER: Mr. Weiser was
profiting, certainly, from
illegal use of those copy-
rights taking place primarily
in England and certainly by
buying the books from them,
yes."
A. Isn't that just what I said, Mr. Mittel?
Q. I don't think so.
Now, you were working for Mr. Weiser when he was doing that, were you not?
A. Yes, I was.
Q. And "illegal abuse of copyrights," is that the same as perhaps piracies of the copyrights?
A. The term is Mr. Motta's, and I would not agree that they're equivalent.
Q. When you came to California on behalf of Mr. Motta, you had instructions to, among other things, obtain copies of the Crowley-Germer library for him didn't you?
A. Yes. [page 444]
Q. No question about that?
A. No question about that.
Q. And you didn't do that, did you?
A. It was impossible for me to do it when I was here. I would have had to go back to New York, as I was on Weiser's expense --
Q. And one of your more specific instructions was to ultimately not cooperate with Mr. McMurtry and Miss Seckler in obtaining possession of the library; is that right?
A. To not cooperate?
Q. Yes. Ultimately that's what he told you on July 10th?
A. Mr. Mittel, I explained to you that I received the July 10th letter in Los Angeles. When I returned to San Francisco, it was Sunday the 25th. The hearing was on Monday the 26th.
So prior to my going out there and making four days' worth of arrangements with the tree others involved, I had no such instruction.
After I had finished my mission, I received further instruction from him, yes.
Q. Well, Mr. Wasserman, Mr. Motta had not told you prior to July 10th to cooperate with Mr. McMurtry, had he? [page 445]
A. What I understood my responsibilities were were to best protect Mr. Motta's legal interests and secure copyright -- excuse me -- secure copies of the library.
Q. Well, hadn't he told you in several letters on several occasions that you were to -- Mr. McMurtry was not to have any role in your activity, that Mr. McMurtry was not acceptable unless he could show appropriate documentation and ultimately that he was not acceptable at all?
A. That's not what he told me.
MR. MITTEL: I've heeded your admonition, Your Honor. I don't want to belabor that on cross.
If he could do that on direct, then I will.
THE COURT: Yes.
BY MR. MITTEL:
Q. Ultimately what happened was that the library came into the possession of Phyllis Seckler; is that right?
A. It came into the possession of the Order, and Phyllis Seckler was holding the physical property.
Q. And you didn't phone anybody from Los Angeles to say: "Mr. Motta doesn't want you to do that. I don't want to cooperate"?
A. Pardon me?
Q. I said you didn't phone any of he plaintiffs when you were in Los Angeles on July 19th, 20th, 21st, 22nd? [page 446]
A. No. No. I received Mr. Motta's letter of the 21st and, no, I did not phone anyone. I phoned Mr. Gunther and -- or actually Mr. Gunther phoned me.
Q. That was on the 19th?
A. That was on the 19th.
Q. And you didn't go to court on July the 26th?
A. No, I did not.
Q. And you didn't take the opportunity to go to the court and stand up and say, "I'm here on behalf of Marcelo Motta who claims to be the conservator of these books and on behalf of the Ordo Templi Orientis," did you?
A. No, I did not.
Q. And as a result of that, Mr. McMurtry and Miss Seckler and Mrs. Smith came into possession of the books?
A. As a result of that, the OTO regained possession of this property, yes.
Q. And later, at least possibly, Phyllis Seckler stole those books and those documents; is that right?
A. My best understanding is that the library was lost.
Q. And it was at her hands that it was lost?
A. Yes.
MR. MITTEL: That's all I have, Your Honor. [page 447]
THE COURT: Thank you.
Do you have any redirect?
MR. MacKENZIE: Yes, Your Honor.
REDIRECT EXAMINATION
BY MR. MacKENZIE:
Q. You mentioned that you saw a New York attorney about Mr. Motta's claims?
A. Yes.
Q. When did you see him, what year?
A. I saw him before I went to California. In fact, it was between my visit to Mr. Motta in Brazil and my going to California.
Q. So you saw him before you had seen Mr. McMurtry's letters of authentification?
A. Oh, absolutely. That's why I was in a position to make a judgment on his letters.
Q. Were you in a position to talk to that attorney about the claims of Mr. McMurtry?
A. Not at that time, no. I was not.
Q. Now, Defendants' Exhibit 60 that you were shown, which is the July 7th -- or July 6th letter --
A. Right.
Q. -- where were you when you wrote that.?
A. I was in New York. I had just received a letter from Phyllis Seckler stating that she did not want her [page 448] name mentioned in any publication -- and I felt that she -- and I believe she threatened to take legal action if her name was mentioned.
Q. Had you met her before the time you wrote this letter?
A. No.
Q. Well, when you say: "It is clear that Phyllis McMurtry cannot be trusted," what did you base that on?
A. Well, for one thing I had a lot of constant filling-in of biographical details by Mr. Motta.
And it was always this business with her, in particular.
And when I received this letter, it did not some like a real gung-ho statement to me.
Q. So the primary reason for your stating that was based on thins that Mr. Motta had told you in the past?
MR. MITTEL: Objection; leading.
THE COURT: I think it is proper.
Overrulled.
THE WITNESS: Combined with her letter, which --
BY MR. MacKENZIE:
Q. One letter?
A. One letter that she had written to the publishing company, yes. [page 449]
Q. I showed you plaintiffs's Exhibit 131, which is the July 26th letter from Mr. Motta.
A. Yes.
Q. Did you feel that you had any obligations for procuring him the library after having read that letter?
A. The obligations that I would have felt at that time were concerned strictly with my own personal honor and --
Q. In other words, it was a moral feeling?
A. Yes.
Q. Does the A.'.A.'. have any rights to the library?
A. No. The A.'.A.'. is not -- does not include a concept of legal rights.
Q. Do you know for a fact who took the library in 1979?
A. Who took the library in 1979?
Q. The theft of it?
A. I don't have the slightest idea.
Q. Where were you living in 1979?
A. In New York.
Q. How old were you in 1976 when all this was going on?
A. I believe I was 25, 26.
Q. Mr. Mittel asked you if you didn't have some kind of a loyalty towards Gernon, Richard Gernon. [page 450]
A. Richard Gernon? Yes.
MR. MITTEL: Objection. That's a misleading characterization of the question.
THE COURT: What was the question --
MR. MacKENZIE: Let me re --
THE COURT: Well, introduce it differently, then. You're just introducing the subject matter, I assume?
MR. MacKENZIE: Yes.
BY MR. MacKENZIE:
Q. Did you state that you had some loyalty towards Richard Gernon at this time --
A. My loyalty to Mr. Gernon is a personal friendship as well as Order loyalty. But I believe it is Mr. Gunther that we're referring to.
Q. I'm sorry. Mr. Gunther.
-- and that you had feelings of loyalty after the Calaveras Court decree, but during that time as well?
A. Certainly.
Q. Was Mr. Gunther a member of the A.'.A.'.?
A. Yes, he was.
Q. And was he a member of the OTO?
A. There was no OTO.
MR. MacKENZIE: No further questions. [page 451]
THE WITNESS: Oh, excuse me.
He was a member of the OTO. He had been initiated by Grady at that time.
BY MR. MacKENZIE:
Q. Plaintiffs' OTO?
A. No, there was no plaintiffs' OTO
Q. All right. But initiated by Grady and not by Mr. Motta?
A. No, wait. I'm --
Q. We're talking about the OTO. You tell me.
A. Okay. Since I'm a plaintiff in this case, plaintiffs' OTO was the organization to which Mr. Gunther belonged as of July 27th 1976.
Defendants' OTO did not exist as of this date in the United States.
Q. And Mr. Gunther's association with Mr. Motta at that time was through the A.'.A.'.?
A. Strictly.
MR. MacKENZIE: Thank you.
RECROSS EXAMINATION
BY MR. MITTEL:
Q. Did I understand you to testify a moment ago that you had not seen Mr. McMurtry's authorization and so-called Caliphate letters until you went to California? [page 452]
A. What I said was I had not paid any attention to them. They were not included in my brief to Mr. Mishkin at all. They -- I -- they were, to my mind, irrelevant to what I was dealing with.
Q. But you had seen them; they had been in --
A. Published in Gnostic {SIC sb. "Gnostica" -weh}, yes.
Q. And also had been in "In the Continuum" published by Mr. McMurtry and Miss Seckler?
A. I had never seen that publication.
And, as I said, I had sent a copy of the Gnostic {SIC sb. "Gnostica" -weh} to Mr. Motta.
Q. So you had seen the documents?
A. Yes.
MR. MITTEL: Thank you.
Nothing further.
THE COURT: Mr. Wasserman, I have a couple of questions I'd like to ask you.
THE WITNESS: Sure.
THE COURT: You have been in the publishing business?
THE WITNESS: Yes, sir.
THE COURT: When did you first come across a publication bearing the name of Thelema?
THE WITNESS: I remember it very well, because it was, I believe, 1970 when Helen Parsons Smith [page 453] put out the "Sheegee" (phonetic) {SIC sb. "Shi Yi" -pla sb. "The Shih Ji" -def}, and I was close by to her. I was in California. And I was considering stopping to meet her, because she --
THE COURT: And what year was that?
THE WITNESS: I believer it was 1970, Your Honor.
THE COURT: And this was publishing done by Mrs. Smith?
THE WITNESS: Yes.
THE COURT: Thank you very much. You may step down.
(Witness excused.)
MR. MacKENZIE: Your Honor, could we take a short break at this point, and I'll call my next witness?
THE COURT: Yes, sure.
MR. MacKENZIE: Thank you.
THE COURT: Just a five- or ten-minute recess, please.
(Brief morning recess taken.)
THE COURT: Are you ready to proceed, Mr. MacKenzie?
MR. MacKENZIE: Yes, Your Honor. I'd like to call Martin Starr to the stand. He's informed me he would like to have the fee-thinkers' oath administered. [page 454]
MARTIN P. STARR,
Called as a witness by the plaintiffs, having been first duly sworn, was examined and testified as hereinafter set forth.
THE COURT: Would you please be seated and state your full name and spell your last name for the record?
THE WITNESS: My name is Martin Patrick Starr, S-t-a-r-r.
DIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Mr. Starr, where do you reside?
A. I reside in Chicago, Illinois.
MR. MITTEL: Your Honor, at this point I would like to object to any further testimony offered by this witness on the grounds that he was not identified in the Answers to the Contention Interrogatories which we served sometime in the early spring of `984 and which were answered, Supplemental Answers were filed, Further Supplemental Answers were filed.
MR. MacKENZIE: Your Honor, there is a very simple reason for that.
Until January of this year, Mr. Starr was Mr. Motta's main associate. He did not quit his association with SOTO until January. [page 455]
I never spoke with him until, I believe, March of this year.
Mr. Mittel sent all the Interrogatories, at least I would say, about a year prior to that.
I had no knowledge that Mr. Starr would be my witness until two months ago.
I think he's absolutely invaluable because he's been with Mr. Motta for five years. He's aware of virtually every element of this case.
And what's more, he assisted Mr. Mittel during the entire time in his trial preparation. This is absolutely no surprise to Mr. Mittel.
THE COURT: When did you first advise the defendants of your intention to use Mr. Starr?
MR. MacKENZIE: At the time we were preparing the pretrial statement. I would say that was four, five weeks ago.
MR. MITTEL: I think that's about right.
THE COURT: Okay.
MR. MacKENZIE: I would say I had known at that time -- well, I don't really know -- three weeks, four weeks. I'm not sure.
THE COURT: Well, I will overrule the objection to Mr. Starr's testimony and I will allow him to testify. [page 456]
MR. MacKENZIE: Thank you, Your Honor.
MR. MITTEL: Let me make a precautionary statement then.
As he did say, he worked with me in the preparation of the Maine case.
THE COURT: I'm sorry?
MR. MITTEL: He worked with me in assisting to prepare the lawsuit in Maine, so there may be a series of attorney-client objections.
THE COURT: You are certainly entitled to raise them.
MR. MITTEL: Pardon?
THE COURT: You are certainly entitled to raise them.
MR. MITTEL: Oh, I know.
I'm sort of warning the Court of things --
THE COURT: Yes, fine.
BY MR. MacKENZIE:
Q. Mr. Starr, what is your vocation?
A. I'm a graduate student at the University of Chicago.
Q. And what do your studies concern?
A. I study the history of science with particular emphasis on the history of the occult sciences.
Q. That is what you are doing your graduate work in? [page 457]
A. Yes, sir.
Q. And what did you do your undergraduate work in?
A. Classical languages and literature, Greek and Latin.
Q. Are you familiar with Mr. Motta?
A. Yes, I am.
Q. You've been affiliated with Mr. Motta?
A. For quite some time, sir.
Q. When did that begin?
A. It began in October of 1976 when I became a probationer of the A.'.A.'..
A. Who did you work with at that time in the A.'.A.'.?
A i initially was in contact with Mr. James Daniel Gunther of Nashville, Tennessee, who was his associate in the A.'.A.'..
Q. What role did Mr. Gunther play?
A. Mr. Gunther, to my knowledge, was Mr. Motta's sole direct student in the A.'.A.'. in the United States and the American head of what Mr. Motta terms the Order of Thelema.
Q. Do you know if Mr. Motta had an SOTO or OTO type of branch in the United States at that time?
A. No, he did not, sir.
Q. Were there any other members in the A.'.A.'. at the [page 458] time you joined other than Mr. Gunther and Mr. Gernon?
A. Not to my knowledge, sir.
Q. Did you ever discuss at this time the OTO itself?
A. No. There was absolutely no discussion of the OTO. Our matters at the time were solely concerned with the A.'.A.'..
THE COURT: I've lost who he's talking to, Mr. Motta or Mr. Gernon?
MR. MacKENZIE: No. I'm sorry, Your Honor.
This is with Mr. Gunther and Mr. Gernon.
BY MR. MacKENZIE:
Q. Let me ask you a preliminary question:
Was Mr. Motta in the United States at this time?
A. No, he was not, sir.
Q. Do you know when he first came to the United States in the 1970s?
A. Mr. Motta did not come to the United States in the 1970s; he came to the United States in July 1980.
Q. He was never in the United States in the 1970s, to you knowledge?
A. No, sir.
Q. Are the A.'.A.'. and the OTO related?
A. No, sir.
Q. Do you know if Mr. Gernon became involved with the [page 459] OTO?
A. When I first talked with Mr. Gernon on the telephone in, I believe, May of 1977 he indicated that he had been in California in July of 1976 and was then initiated into the plaintiffs" OTO.
Q. When did the SOTO develop?
A in May of 1977 I was informed by Richard Gernon that Mr. Motta had chartered James Daniel Gunther to be his OTO representative -- SOTO representative in the United States.
Q. To your knowledge, was Mr. Gunther an American citizen?
A. Yes, he is, sir.
Q. Do you know if he went to Brazil to get chartered?
A. No, he did not. This all done through the mail.
Q. So, in other words, prior to this SOTO in May of 1977, there was no SOTO?
A. That is correct.
Q. Where were you living at this time?
A. In May of 1977 I was living in St. Louis, Missouri.
Q. Did you ever live in Nashville?
A. Yes, I did. I resided in the academic year of 1977 and 1978 when I attended Vanderbilt University.
Q. Were you familiar with the SOTO at that time? [page 460]
A. Yes, I was. I had visited there that spring and had talked with people.
Q. Do you know how many members there were in the SOTO at that time?
A. There were approximately five to seven members.
Q. Now, did you know Mr. Gunther?
A. Yes, I did. We became very good friends once I moved there.
Q. Did you know him well?
A. Yes. I spent many, many hours discussing with him all the things that have been discussed in this courtroom.
Q. What kind of person -- could you describe him; what kind of a person is he?
A. Mr. Gunther, in my opinion, is a very highly principled, very honored -- honorable and a very intelligent person.
Q. Do you know how long he remained with the SOTO?
A. Yes. He was expelled by Mr. Motta in November of 1978. So a little bit more than one year he was a member.
Q. Do you know the reason for his expulsion?
A. Yes. He was accused of planning the murder or --
MR. MITTEL: Objection.
THE WITNESS: -- Mr. Motta's Brazilian [page 461] representative.
MR. MITTEL: I move to strike the answer.
THE COURT: Well, lay the foundation for the source of his knowledge.
BY MR. MacKENZIE:
Q. Do you have knowledge --
A. Yes.
Q. How do you know that?
A. Mr. Gunther came to me after these accusations had been brought forward and discussed the whole matter with me at very great length.
MR. MITTEL: Objection, hearsay.
THE COURT: I'm going to admit it as an exception to the hearsay rule.
BY MR. MacKENZIE:
Q. What was the reason again for his expulsion?
A. He had been accused of plotting the murder of Mr. Motta's Brazilian representative who was than in Nashville, Tennessee, Miss Caluida Canuto, C-a-n-u-t-o.
Q. And are you saying that Mr. Motta accepted this?
A. Yes, he did.
Q. And he based his expulsion upon this?
A. Yes, he did.
Q. Do you have any reason to know if these are true facts or accusations? [page 462]
A. To the best of my knowledge and from my knowledge of Mr. Gunther, they are utterly without merit.
Q. Do you have any idea why Mr. Motta may have done this?
A. Mr. Motta is an extremely suspicious individual and rends to believe the worst about everyone at any time.
I will go farther and say that his suspicions are paranoid.
MR. MITTEL: Objection; move to strike. No foundation.
THE COURT: The last sentence may be stricken.
BY MR. MacKENZIE:
Q. Are you familiar with what -- the state of mind of -- that's being described about Mr. And Mrs. Germer earlier during this trial?
A. Yes. I've read a great deal of their writings.
Q. Would you say that Mr. Motta's state of mind is similar to that?
A. Precisely, sir.
Q. Precisely similar?
A. Yes.
Q. Well, after you moved out to Nashville, what happened next?
A. In terms of what, sir? [page 463]
Q. Well, in terms of the A.'.A.'. or the SOTO.
A. Well, after Mr. Gunther was expelled, the situation in Nashville pretty much remained an even keel.
The work wend ahead, publishing of Mr. Motta's first book that he had issued in his country under his control, "Equinox 5-2" appeared.
Q. And who was the publishing company for that?
A. Well, it was printed under the imprint of Thelema Publishing Company, --
Q. I see.
A. -- a Tennessee corporation.
Q. I see. Thank you.
THE COURT: When was the publication?
THE WITNESS: It was in March of '79, Your Honor.
THE COURT: '79?
THE WITNESS: Yes.
THE COURT: Okay.
BY MR. MacKENZIE:
Q. Now let me make sure I understand. You were a member of A.'.A.'.?
A. Yes, sir.
Q. And you became a member of the SOTO?
A. That's correct.
Q. And when did you become a member of the SOTO? [page 464]
A. I became a member of the SOTO in November of 1979.
Q. As regards the A.'.A.'., after Mr. Gunther had been expelled -- was he expelled from the A.'.A.'. or the SOTO?
A. That's a point of contention. My conversation with -- mr. Gunther said that he never resigned from the A.'.A.'., yet Mr. Motta has published that he voluntarily withdrew, so that there's some disagreement.
Q. I see. Well, have you had any communication with Mr. Motta?
A. Yes. I've had very extensive communication with Mr. Motta.
Q. How extensive is that?
A. I would say approximately 40 letters, hundreds of phone calls, several personal meetings.
Q. Were you ever appointed -- well, what range did you achieve in the SOTO?
A. When I was admitted in the SOTO in November of 1979 I was admitted as a Director.
Q. By "Director," what do you mean?
A. Well, Mr. Motta had outlined a hierarchy in his SOTO and Director was one from the top.
Q. Is that like a Board of Directors --
A. Yes, sir.
Q. -- on a corporation?
A. Yes, sir. [page 465]
Q. Are we talking about -- well, is SOTO a corporation?
A. To my knowledge, sir.
Q. When you're saying "Director," do you mean the Board of Directors of the corporation?
A. I had always assumed that that was such.
Q. Do you know if SOTO incorporated anywhere else?
A. Yes.
Under my direction, it incorporated in Illinois. It incorporated in California. I believe attempts were made to incorporate it in England and in Australia and in Canada as well as in Brazil, when it was actually incorporated.
Q. As regards the countries, excluding Brazil, were all of these corporations after his Tennessee corporation?
A. Yes, sir, every one of them.
Q. And do you know if the Illinois corporation is still active?
A. It is no longer active, sir.
Q. Are any of the other corporations you spoke of active?
A. To my knowledge, the only one that -- excluding the Tennessee one -- that may be active is Australia, but I have no direct knowledge of that fact, sir.
Q. How long did you stay in Tennessee? [page 466]
A. I stayed in Tennessee for one academic year.
Q. And where did you go then?
A. In October of 1979 I returned to the University of Chicago where I had done my freshman year studies.
Q. Who else was on this Board of Directors?
A. At what time, sir?
Q. At the time you were a member of the Board of Directors.
MR. MITTEL: Objection; I think he is mischaracterizing the answer.
He didn't say he was on the Board of Directors; he said he didn't know.
MR. MacKENZIE: I'm not --
THE COURT: Well, who held the title of Director?
THE WITNESS: Very well. The title of Director was held by a Jeremy Charles Ellis of London, England, by a William Robert or Richard Barton of Melbourne Australia, by a Claudia Canuto of Nashville, Tennessee, and I believe that was all at that time.
BY MR. MacKENZIE:
Q. Is it your understanding that these people were members of the Board of Directors of the Tennessee corporation, SOTO?
A. Well, no, because none of them except me was an [page 467] American citizen. So I don't know if that's possible. The legal aspects of that I'm unaware of.
Q. Where {SIC sb. "Were" -weh} there ever any Board of Directors' meetings?
A. Never.
Q. Have you seen corporate records?
A. Yes, I have. I examined Mr. Motta's files in December of 1983 when I spent a week at his house.
Q. Well, did Mr. Motta ever consult the Board of Directors regarding the SOTO action that he wanted?
A. Consult in what sense?
Q. Well, for their approval.
A. No. Our approval was not required and most often never sought for any action he took. And to ever go in opposition to any direction that he wanted to take put you in immediate peril of expulsion, as he took great pains to point out whenever such suggestions were made.
Q. Would you say he's an arrogant man?
A. I would say --
MR. MITTEL: Objection; relevancy.
THE COURT: Sustained.
MR. MacKENZIE: Well, Your Honor, I think it goes to the state of mind of -- the issue here, because we have this libel in this case, and I believe that it was done with malice aforethought.
THE COURT: Well, if you want to ask [page 468] about any personal animosity which Mr. Motta had against any of the individual plaintiffs, but his general character is not an issue here.
MR. MacKENZIE: Well, I think, Your Honor, it supports in the way that the writings are produced by this man; it's just a trait of his character to thoughtlessly be putting out these books one after the other.
THE COURT: Well, I think the malice has to be more specifically directed than that.
I sustain the objection.
BY MR. MacKENZIE:
Q. Have you ever seen the Constitution of the SOTO?
A. Yes. I've seen two of them, an earlier typed version and a later printed version, which has some changes.
Q. Yes. What can you tell me about the Constitutions?
A. Well, in both Constitutions the absolute authority of Mr. Motta as supervisor, again, a title that he invented for himself is maintained.
In the firs Constitution there was a chapter on disciplinary norms which mentioned that if a member acted out of line that a request could be made to the Supervisor for the "elimination of the culprit."
Q. Do you know that that phrase "elimination" meant? [page 469]
A. Well, Mr. Motta uses it in a rather ambiguous sense. In one sense, the common sense acceptation of it I would think would mean the removal of a member from the SOTO.
However, I have seen him use it in letters and in a document he wrote in the '50s about the OTO where he was calling for the murder of people who acted out of line in the Order.
Q. What letter, if you remember, was that?
A. One letter I can thin of was a letter to the late Jeremy Charles Ellis, a British Director whom he expelled.
MR. MITTEL: Objection; Best Evidence.
Move to strike the answer.
THE COURT: Do you have that letter?
MR. MacKENZIE: Yes, we do have the letter.
THE COURT: Has it been placed in evidence?
MR. MacKENZIE: No, it has not, Your Honor.
It's going to be reserved for impeachment.
THE COURT: Since the witness has testified to it on direct examination, I think you should mark it for identification now.
MR. MacKENZIE: It will take just a minute to locate it. [page 470]
THE COURT: Well, why don't we -- please do move on with the testimony. We'll come back to that when it's located.
BY MR. MacKENZIE:
Q. Can you draw a comparison or contrast between SOTO's current Constitution and the "Blue Equinox's" 1917 constitution?
A. Yes, sir. I think they have absolutely no organizational relationship.
Q. Now, tell me again: When you lived in Nashville, you were a Director; is that correct?
A. No, sir. I did not become a Director until I returned to Chicago in October of 1979.
Q. Do you know about how many members there are of the SOTO at this time?
A. Internationally are you asking me, or in the United States?
A. No, in the United States.
A. I would say five, sever. No more than that.
Q. What were your duties --
THE COURT: I'm sorry. What portion of the SOTO, which organization?
MR. MacKENZIE: The SOTO's U.S. members.
BY MR. MacKENZIE:
Q. Did you have any other duties as Director? [page 471]
A. Yes, sir. I engaged in correspondence with people who were interested in becoming members of the SOTO. I engaged in research, background material for Mr. Motta's various publications, including gathering work by Aleister Crowley.
I also collected dues from members and admitted members when it became possible.
Q. Did you take out advertisements?
A. Yes, sir, I did.
Q. And did those advertisements state Society Ordo Templi Orientis?
A. They always did, sir.
Q. Did they talk about Aleister Crowley?
A. Yes, I believe they all did.
Q. Did they hold themselves out as the Ordo Templi Orientis?
A. Yes, sir.
That was always Mr. Motta's contention about his SOTO.
Q. Do you know about how many members there are, well, today or within the last six months, currently?
A. Within my knowledge i would say there are maybe four, perhaps three members internationally.
Q. Now, who is Jeremy Ellis, is he a member?
A. Mr. Ellis, now deceased, was a British Director of [page 472] the SOTO and was expelled by Mr. Motta.
Q. And I think you said Claudia Canuto was a member?
A. Yes. She was a Brazilian Director of the OTO -- SOTO and a resident of Nashville, Tennessee, and subsequently expelled from the SOTO by Mr. Motta.
Q. And Gardis (phonetic), is he a member?
A. No, sir, he's not.
Q. Has he ever been a member?
A. No, sir.
Q. And Jillis Cabaniss (phonetic)?
A. Yes, Jillis Cabaniss. He's a member of the SOTO and former president of Thelema Publishing Company.
Q. After all the time that you've spend with Mr. Motta, do you have any impressions as to his personality?
A. Yes, I do. Very definite ones.
Q. Would you give those to me?
MR. MITTEL: Objection; relevance.
MR. MacKENZIE: Your Honor, it's the same thing again. It's -- Mr. Motta is -- is so disregarding of any facts because he's so biased by his arrogance of his -- by his hatred, by his Semitism {SIC sb. Antisemitism -weh}.
He's got a poisoned mind and that's the basis on which he's writing these things and that's what I need to bring out. [page 473]
THE COURT: Well, the causes of action were for unfair compensation [SIC mb. "competition" -weh}, trademark infringement and slander.
MR. MacKENZIE: And we're asking for punitive damages.
THE COURT: Well, I understand that. But I think to ask for punitive damages you have to show that Mr. Motta's state of mind, wherever it might be, was individually directed towards the plaintiffs.
And I don't think we're asking -- asking about general personality characteristics or a witness' observation of these characteristics, which is irrelevant to these issues.
I'm going to sustain the objection.
BY MR. MacKENZIE:
Q. When id you first meet Mr. Motta?
A. I first met Mr. Motta in August of 1980 when he came to this country from Brazil. He had not been here since 1961, I believe.
Q. And when did you see him next?
A. I saw him next in December of 1983 when I spent a week at his house as his guest.
Q. Let me ask you specifically Mr. Motta's -- if you know of Mr. Motta's feelings towards the people he has libeled in this lawsuit? [page 474]
Do you have any opinion about that?
A. Yes, I do.
MR. MITTEL: Objection to the form to the question.
THE COURT: Yes. Your opinion isn't proper, Mr. Starr.
If you have any statement Mr. Motta made to you about the people who are involved in this lawsuit, you may testify to that.
MR. MITTEL: There is a further objection, Your Honor.
If these statements were made on the telephone, it is the Best Evidence objection because, as I understand it, Mr. Starr recorded all of his conversations of the phone with Mr. Motta.
If it was an in-person conversation, then there's no objection.
THE WITNESS: To correct Mr. Mittel, I did not record all of my conversations with Mr. Motta on the telephone. I recorded a select few at Mr. Motta's insistence, but I can testify as to what he told me in person.
THE COURT: Would you do so, please?
THE WITNESS: Certainly.
He said of Grady McMurtry, "He's a fool." [page 475]
Of Phyllis Seckler, "She's a completely deluded woman."
And of Helen Smith he said very, very little.
BY MR. MacKENZIE:
Q. All right. Did he say anything about Mr. Wasserman?
A. He had plenty to say about MR. Wasserman, that he was a traitor, that he was a creep, that he was a very extremely malevolent individual with great cunning and malice and that his deposition was a tissue of falsehoods.
Q. What was his state of mind, if you can tell, when he made most of these accusations?
MR. MITTEL: Objection, insofar as the question calls for some type of mental health, medical conclusion.
THE COURT: Well, I agree.
You can testify if he was excited, calm or angry, or something like that. But please do not express any psychiatric opinions.
THE WITNESS: When Mr. Motta would speak about these matters, he would be very, very animated.
And oftentimes when he would talk about these things it would be after he had done considerable drinking. [page 476]
BY MR. MacKENZIE:
Q. Well, how often did he do considerable drinking?
A. When I was with him, I do not believer there was an evening in which he did not do considerable drinking, sir.
MR. MITTEL: Objection; relevance. Move to strike.
THE COURT: Well, I think this is sufficiently connected to the malice testimony.
I'll overrule the objection.
BY MR. MacKENZIE:
Q. How many days in total would you say that you had spend with Mr. Motta?
A. Twelve, fourteen, something along those lines.
Q. And of those days, about how many of them was he heavily intoxicated?
A. I would say in the evening on every single one of those occasions he was heavily intoxicated.
Q. Do you know if he does some of his writing when he was intoxicated?
A. ,yes, sir. I've seen him do it in his own home, and in Maine.
Q. Have any of these intoxicated writings appeared in print?
A. Yes, sir. His most recent book is a sterling [page 477] example of this.
Q. How do you know that?
MR. MITTEL: Objection; foundation. Move to strike.
BY MR. MacKENZIE:
Q. Well, how do you know that?
THE COURT: Well, he's establishing a foundation.
BY MR. MacKENZIE:
Q. Tell me how you know that.
A. Because I saw him entering the text in our Maine hotel room. For "magick Without Tears", that is.
Q. You saw him writing?
A. Yes, sir.
He had the computer with him.
Q. And he was in an intoxicated state?
A. Yes, sir.
Q. I just want to make sure when we're talking about intoxication we understand the level. Was this a mild one or two beers, or what are we --
A. Sir, when we came back from the restaurant and visited one night, he was falling down in the snow. I would consider that severely intoxicated.
Q. Does Mr. Motta, when he is writing, consider outside sources of information with which to draw [page 478] conclusions?
A. No, sir. He would often run off on his flights of fantasy. And when I would correct him, he often got extremely indignant and questioned my motives for correcting him although the corrections I made were oftentimes simple matters of historical fact, total mistranslation and other such things.
Q. Well, now, if you wanted to tell him something, or if he got some impetus from another source, what was his response to it?
A. If it didn't tally usually in every single point with his preconceived opinions, he would reject it violently.
Q. Do you have any example of that?
A. Let me just think for a second.
Well, i can give you a classic one.
Let me -- just a second.
Oh, yes. There was a transcription of a Crowley diary in publishing "Sex and Religion."
And Crowley said something to the effect of "do not confuse, " and then there is a phrase in French, "with any sort of mystical trance."
And when the transcription -- the transcription that he used was not prepared by Mr. Motta. He amended it to say "tren etre" (phonetic) in [page 479] French, which he said in there being, about to become, or something like that, and then commented on what he though this meant.
I went back to him and said, "No, it didn't say 'tren etre'; it said 'bien-etre,' feeling good, a phrase Crowley used frequently.
And he said, "Well, I've commented on 'bien-etre' elsewhere and it's -- it's okay. We'll leave it in."
And I took very great offense at that, because it showed to my mind that he thought his own writings were far more important than what Crowley had to say.
Q. Did it get printed that way?
A. It surely did, sir.
You'll find it in the book sitting on the plaintiffs' table.
Q. Is that "Magick Without Tears"?
A. No, sir. I'm referring to "Sex and Religion."
Q. I see. Has Mr. Motta published "Magick Without Tears"?
A. Yes, he has, sir.
Q. Isn't that an Aleister Crowley work?
A. It was before he put his hands on it.
Q. Now, is that a work that Mr. Crowley gave [page 480] Mr. McMurtry twenty-five percent of?
A. That is correct.
Q. Well, what's he doing publishing this book?
A. He believes it's his to dispose of as he sees fit.
Q. Do you know if it was originally registered?
A. Yes, it was registered by Karl Germer in trust for the OTO.
Q. Has Mr. Motta registered it?
A. Yes. He registered it as a claim of renewal of copyright in a posthumous work in April of 1982.
Q. I'm not sure -- how does he claim title?
A. As the owner of a copyright on a posthumous work.
Q. Well, is he claiming -- well, how does he claim title to it?
MR. MITTEL: Objection; sounds like a copyright infringement case, Your Honor.
THE WITNESS: in the name of the SOTO in America.
MR. MacKENZIE: Certainly the relief I'm seeking, Your Honor, I'm asking that all of the copyrights that he has taken out be voided as well as the trademark and tradenames, they either be voided or be transferred to the plaintiffs.
MR. MITTEL: And again that's an issue that was addressed in the -- [page 481]
THE COURT: Well, I'm going to overrule the objection. I think it's an issue in the Counterclaim; I think it's an issue in the Complaint itself.
BY MR. MacKENZIE:
Q. And then --
MR. MITTEL: Let me pursue that for a moment.
An issue in the Complaint and in the defendants' Counterclaim, Your Honor?
THE COURT: Yes. You've alleged breach of copyright.
MR. MITTEL: Right. We've alleged breach of -- we've alleged copyright infringement as respects one work, "The Holy Book {SIC sb. "Books" -weh} of Thelema" and no other works.
MR. MacKENZIE: Your Honor, --
MR. MITTEL: Mr. MacKenzie then filed a Counterclaim to our Conterclaim. I'm not sure that that can be done.
I think he has to move to amend his own. But when you look at his Counterclaim to our Counterclaim, what it seeks to do is establish this his clients own rights to all of the copyrights at issue in this lawsuit.
There's only one copyright that's at issue in [page 482] this lawsuit. And that is "The HOly Book {SIC sb. "Books" -weh} of Thelema." And no others are at issue, even if his declaratory judgment --
THE COURT: I'm going to permit the testimony. I'll sort that out later.
MR. MITTEL: Then I think it would be easier to just stipulate as to which works the defendants have registered without worrying about whether the witness knows whether they were ever registered.
MR. MacKENZIE: I would be more than happy to do that Your HOnor.
MR. MITTEL: Could we try to work that out during the noon recess?
THE COURT: Yes, certainly.
BU MR. MacKENZIE:
Q. Well, you mentioned that Karl Germer had registered some of these works?
A. Yes, sir, he had. I have seen the certificates.
Q. How does OTO end up with them?
A. Well, my understanding of the previous Copyright Act, the registered of the copyright only had to give the name of the --
MR. MITTEL: Objection; he's not qualified to testify. [page 483]
THE COURT: No, that is a legal matter, but I'm going to let him testify as to what his understanding is. But I respect the fact that he cannot give an expert opinion on copyrights.
BY MR. MacKENZIE:
Q. Well, I'm not talking so much procedurally as your understanding of the case as to how Karl Germer somehow bequeathed the copyrights to the OTO.
A. In his will or in the registration you're referring to --
Q. I don't want you to really talk about the law, because you are not an expert in it. But as regards the facts of this case, Karl Germer's intent and so forth.
A. Oh, Karl Germer was Outer Head of the OTO. He did it in trust for the OTO. That is my understanding, sir.
Q. Was this in the same way that Aleister Crowley left them to the OTO?
A. Certainly.
Q. Technically speaking, did Karl Germer have any right to put them in his own name.
A. It's my understanding that he did, sir.
Q. That he could have even though they were left to the Order?
A. Certainly.
Q. I mean for -- [page 484]
A. He was identified with the copyright's owner, being the OTO.
Q. Okay. Do you know when most of the copyrights were done by the defendant?
A. To my knowledge, they were all done after 1979 and most of them have been done since the initiation of this lawsuit.
Q. Moving away from copyrights to trademarks --
MR. MacKENZIE: Well, if, I might just say, Mr. Mittel will then stipulate as to which trademarks the defendant has also registered, then there is no need to question Mr. Starr.
MR. MITTEL: Those -- I believe the registration certificates are already in evidence.
THE COURT: Yes, I've seen some of them in evidence.
MR. MacKENZIE: I didn't know if there were others.
MR. MITTEL: They are A,B, C and D.
MR. MacKENZIE: Okay, if that's all.
BY MR. MacKENZIE:
Q. Are you aware of the nature of his claims to the OTO?
A. And when you say "his," I assume you're referring to Mr. Motta? [page 485]
Q. Yes.
A. Yes, I am, sir. I have studied all of the available evidence.
Q. And what's your conclusion?
MR. MITTEL: Objection.
THE COURT: Conclusion on what?
MR. MacKENZIE: Pardon?
THE COURT: Conclusion on what?
BY MR. MacKENZIE:
Q. What is you conclusion as to the validity of his claim?
MR. MITTEL: Objection.
THE COURT: I think that's a legal matter for the Court to decide.
BY MR. MacKENZIE:
Q. Well. As regards the OTO, having studied the OTO matters and having studied Mr. Motta's claims, can you tell me what he bases his on?
MR. MITTEL: Objection, Your Honor.
All of -- among other things, that factual matter, if it is a factual matter rather than a legal matter, was discussed with me in preparation for the copyrights infringement trial in Maine in which ownership of the copyrights was in issue.
MR. MacKENZIE: I don't think it -- [page 486]
THE COURT: Well, I'm sustaining the objection on the ground that is the ultimate question of -- one of the ultimate questions in this case and that is a decision for me to make.
MR. MacKENZIE: Your Honor, with all due respect, the other plaintiffs who have been up here have been asked the same question as to what they felt was the validity of Mr. Motta's claims. That's really what I'm asking about, not an ultimate legal question, but only a personal one, knowing the rules of the "Blue Equinox."
THE COURT: Well, I don't think that question's been asked. Maybe my memory is bad. But I don't think so.
MR. MacKENZIE: May I ask him what he thinks of Mr. Motta's claims to being the Outer Head of the Order?
THE COURT: Yes. That has been asked before.
BY MR. MacKENZIE:
Q. Would you answer that question, as to his claims to being the Outer Head of the Order?
MR. MITTEL: Same objection. I think that's something --
THE COURT: Well, that has been testified [page 487] to by the others.
MR. MITTEL: I know, but the other people didn't help me prepare for the trial in Maine.
THE COURT: Oh, you're raising the objection --
MR. MacKENZIE: Yes, to the --
THE COURT: Okay.
Then you'll have to ask the witness to testify from his knowledge based on that and not what he obtained from Mr. Mittel or his colleagues in preparation for the lawsuit.
MR. MacKENZIE: Certainly, sir. I expect it was more a case of Mr. Starr educating Mr. Mittel rather than vice versa.
BY MR. MacKENZIE:
Q. But, in any event, from your own knowledge, excluding any information Mr. Mittel may have given you, what is your feeling about the validity of Mr. Motta's claims to the OHO?
A. It's entirely self-assuming and entirely without merit.
Q. Why do you say that?
A. There is no historical basis for it whatsoever.
Q. Did you ever talk to Mr. Motta about Sascha Germer?
A. Yes, on many occasions. [page 488]
Q. Did you ever mention Grady McMurtry in those discussions?
A. Yes, I have.
Q. Did you ever or did he ever talk to you about the claim that Mr. McMurtry allowed Sascha Germer to starve to death?
A. Yes. He's repeated it in very, very many places.
And once I obtained her death certificate, I confronted him with it. And I noted the death certificate that starvation is not listed as a cause of death.
And when he saw this he was, of course, his usual doubting Thomas and went back and checked it and said, "Well, you're right." He professed to be very impressed with this.
However, in a later conversation he said, "Well, you're not a physician; you can't opine on these matters." And that's where it stayed.
Q. After the time that you told him that, did he continue making that claim?
A. He certainly did, sir.
Q. Oh, something that I'd like to know is: You were in this organization for some time?
A. That is correct. For six years, approximately.
Q. When did you quit the organization? [page 489]
A. January 25th, 1985.
Q. When was the last time you had previously spoken with Mr. Motta?
A. I believe it was in may of 1984, sir.
MR. MacKENZIE: Your, Honor, I have a copy of the letter to Jeremy Ellis by Mr. Motta, which I had intended to produce on cross. I don't have a copy of it at this point.
THE COURT: All right. Then let's do it after lunch.
MR. MacKENZIE: Yes, sir.
THE COURT: How much more do you have of this witness?
MR. MacKENZIE: Oh, I think probably five minutes.
THE COURT: Okay. I think, however, for scheduling reasons, we should take a break now and I want to discuss some legal matters and legal rulings with you.
MR. MacKENZIE: That's fine.
THE COURT: Mr. Starr, would you step down please?
THE WITNESS: Thank you, Your Honor.
THE COURT: First of all, Miss Seckler, would you come forward, please? [page 490]
THE COURT: Miss Seckler, I'm going to have to ask you to go through the inconvenience of getting your diaries for he years 1976 through 1984 and examining them. I understand you keep diaries for those years.
MISS SECKLER: They are religious diaries, Your Honor.
THE COURT: Yes, I am aware of that. I'm not asking for anybody else to review them except you.
MISS SECKLER: Okay.
THE COURT: I'm asking you to review the diaries and see if there are any reference in those to the theft of the library or where the location of the library might be at the present time.
If you do not find any such references in your diaries, then we will accept your word there are no such references.
If there are references to those things in your diaries, then would you please give an extract of those references to Mr. MacKenzie?
MISS SECKLER: All right.
THE COURT: Thank you very much.
MISS SECKLER: Thank you.
THE COURT: Now, the parties have --
MR. MITTEL: May I make a short statement [page 490] on the record, Your Honor?
THE COURT: Yes.
MR. MITTEL: What the defendants would prefer is that the diaries be produced in full for an in camera inspection or inspection by counsel, subject to privilege.
Alternatively, that if Miss Seckler conducts the inspection and finds the types of material that Your Honor asked her to look for, that those pages be photocopied and made available to defendants.
THE COURT: All right.
MR. MacKENZIE: Well, I would oppose that, Your Honor.
THE COURT: Well, no. I've asked Miss Seckler to do what she's going to do. If she discloses that there is material in there pertaining to the library or its theft or its present location or clues to it, then we will deal with the question of how the information is going to be disposed of.
First of all, the first job is Miss Seckler's, to go through her diaries and see whether there are any such references. All right.
I'm nor prepared to rule on certain of the motions in limine which have been made by the parties.
You may set down because you may want to [page 492] write some of them down.
Now, first of all, the defendants have raised a First Amendment defense to the libel and slander claims. The basis of asserting the First Amendment defense is that it pertains to religious matters.
It's the ruling of the Court that the First Amendment defense applies only with respect to accusations which fall within religious matters.
The First Amendment is not a defense to an accusation of lying, theft, robbery, assault, misappropriation, slander, pirating or causing death.
It is appropriate to the defense of certain other accusations that are made which deal with religious matters of this Order and to the position of the people within the Order.
The basis for the distinction, if counsel wants to check further, is a case entitled Church of Scientology versus Siegleman (phonetic), 475 F Sub 950 {SIC sb. "Siegelman, 475 F. Supp. -def}, a 1979 District Court decision.
MR. MITTEL: That's 475 F Sub {SIC sb. "F. Supp." -def}?
THE COURT: Yes. 950.
MR. MITTEL: That's a Northern District case, Your Honor?
THE COURT: I'm sorry. But it is a United States District Court case. [page 493]
But you do have the distinction between libel and slander in religious matters, distinguishing between those which are indeed religious and those which are secular.
Now, plaintiffs have raised the Statute of Limitations defense with respect to defendants' Counterclaims 4, 5 and 6.
Defendants have asserted that these Counterclaims -- I'm sorry -- this defense was waved by the failure to plead.
The Court is ruling that the defense of the Statue of Limitations is not waived by the failure to plead, citing Revara versus Anaye (phonetic) {SIC sb. "Rivera versus Anaya" -def}, 726 F2d 564, a Ninth Circuit decision, and the cases cited therein.
However, the Court is not ruling as yet on the applicability of the Statute of Limitations defenses to the Counterclaims because I haven't yet heard all the evidence.
And I will rule later on the applicability of those Statue of Limitations defenses after I have heard the evidence.
So all I'm ruling on at the moment is the failure to set up an affirmative defense of the Statute of Limitations to Counterclaims does not waive that [page 494] defense.
Then the plaintiffs have raised collateral estoppel as defenses to the defendant's Counterclaims Nos. 1, 2, 3 ,7 and 8.
I'm, first of all, ruling that there was no collateral estoppel effect to the Calaveras County decision. The Calaveras County decision is certainly evidence and certainly is probative material. But so far as the res judicata effect, I do not believe it has any -- or collateral estoppel -- I do not believe it has any for the reasons I set forth in the motion, which you filed a few weeks before trial.
With respect to the decision of the United States District Court in Maine, I believe that decision is sufficiently final to give it collateral estoppel effect in this action.
The fact that a decision is not -- is on appeal and the fact that there may be attorney's fees, motions still pending in that case, I do not believe it affects the finality of that decision and can be given and should be given collateral estoppel effect.
The defendant is arguing against the giving of collateral estoppel effect for one other reason, and that is the subsequent production of documents.
I have reviewed all of the documents which [page 495] have been offered by the defendant. And I don't believe that the later production of those documents does upset the collateral estoppel effect of the Maine decision.
Now, the decision in Maine can -- I'm determining so far -- can be used for defensive purposes and not for offensive purposes. That is, the collateral estoppel effect can operate as a bar to the defendants' Counterclaim.
But I am not ruling at this time. I am not ruling at this time that it can be used to establish the plaintiffs' causes of actions.
Now, with respect to what I believe was decided in Maine, there is collateral estoppel in this action insofar as barring the defendants' Counterclaim to the following:
That the defendants here do not own the copyrights to the Aleister Crowley material;
That the old organization known as OTO does not have the legal status to own the property;
Third, that the defendant, Mr. Motta, is not the OHO;
Fourth, that the defendants' registration of the copyrights are not legally effective, because the defendants were adjucated not to own the property;
Fifth, that the defendant SOTO, Society Ordo [page 496] Templi Orientis, is not the successor to the original OTO.
Now, I am not making any determination with respect to what may have been decided about trademarks in the Maine action.
I don't believe that there was any explicit discussion of trademarks in the Maine action, but it seems to me that a lot of decisions that were made with respect to ownership of property and copyrights point in the same direction with respect to trademarks.
I'm just making that comment for the benefit of counsel, and I am not ruling on it at this time.
All right. We will be in adjournment until 1:15.
MR. MacKENZIE: Thank you, Your Honor.
THE COURT: We will go to approximately four o'clock.
MR. MacKENZIE: Fine. Thank you.
MR. MITTEL: Thank you.
(The luncheon recess was taken from 12:12 p.m. to 1:20 p.m. of the same day.)
This is an electronic copy of the McMurtry vs. S.O.T.O. Trial Transcript, made for purposes of analysis and study.
Entered by Bill Heidrick, Grand Treasurer General O.T.O.
Notes: Original transcript pages in square brackets: []
Notes and corrections in curly brackets: {}
with source indicated:
Heidrick corrections & notes: { -weh}
Plaintiff formal corrections: { -pla}
Defendant formal corrections: { -def}
abbreviations used to signify alternative:
"should be" = sb.
"may be" = mb.
abbreviations used to signify transcript confidence:
"doubtful or unknown" = ?
"highly questionable" = ?!
"Thus in transcript" = SIC
"Let it Stand (no change to original) =STET
Obvious spelling errors have often been corrected
without special notice.
Regarding evidence received formally, there appears to be a lapse in the manner of cross-reference used by the court reporter. Some evidence appears on the face of The Court's statements to have been accepted in batches, and these cross-references are not generally tabulated by the reporter. In addition, some single action receivings in evidence may have been similarly over-looked. Evidence is therefore to be found as received through an examination of the entire text of the several volumes of this Trial Transcript, and through a close reading of the decisions of The Court in the progress from page to page of this Transcript.
This is the third of four files of the transcript.
This file covers pages 497 through 783
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE CHARLES A. LEGGE, JUDGE
Grady McMurtry, William E. Heidrick, Phyllis Seckler, Helen Parsons Smith, William Breeze, Francis I. Regardie, James Wasserman, and Kenneth Anger, individuals, Ordo Templi Orientis, a corporation, and Thelema Publications, a business entity,
Plaintiffs,
vs.
Society Ordo Templi Orientis, a corporation, Thelema Publishing Company, a corporation, Marcello Ramos Motta, an individual, and Does I through X, inclusive,
Defendants.
CIVIL NO. C-83-5434
VOLUME III
Afternoon Session
PAGES 497 - 612
REPORTER'S TRANSCRIPT OF PROCEEDINGS OF COURT TRIAL
Wednesday, May 15, 1985
450 Golden Gate Avenue
San Francisco, CAlifornia 94102
REPORTED BY:
Nancy J. Palmer
[page 498]
APPEARANCES:
FOR THE PLAINTIFFS:
STUART I. MacKENZIE, Esquire
80 Swan Way, Suite 301
Oakland, CAlifornia 94621
FOR THE DEFENDANTS:
LAW OFFICES OF MITTEL & HEFFERAN
BY: ROBERT EDMOND MITTEL, Esquire
5 Milk Street,
Portland, Maine 04112
[page 499]
I N D E X
VOLUME III - Afternoon Session
Examinations:
Witness: Direct Cross Redirect Cross Voir_Dire
Martin P. Starr 500 505 514 516
William Heidrick 518 586 543
Resumed 545
Plaintiffs' For In
Exhibits: Ident. Evidence
210 Letter from Mr. Motta
to Mr. Ellis. 501
73 Letter from Mr. Heidrick 532
to Mr. Motta
74 Photocopy of mailer sent 532
to Mr. Motta.
75 Notice enclosed with mailer. 532
11 Letter dated March 3, 1981 567
[page 500]
Wednesday, May 15, 1985 1:20 p.m.
THIRD DAY - AFTERNOON SESSION
THE COURT: Are you ready for Mr. Starr, again.
MR. MacKENZIE: Well, yes. We are indeed.
THE COURT: Okay. Mr. Starr, would you take the witness stand, please.
MR. MITTEL: Your Honor, the questions about collateral estoppel, shell we take those up at 4:00?
THE COURT: Yes, please.
Mr. Starr, you're still under oath from this morning's testimony.
THE WITNESS: Yes, I understand.
DIRECT EXAMINATION (Resumed)
BY MR. MacKENZIE:
Q. We were talking earlier about some correspondence that Mr. Motta had sent to Mr. Ellis in conjunction with the word "termination"; do you remember?
A. I believe he said "elimination of the culprit."
Q. "Elimination of the culprit."
And it was your testimony that he had put similar thoughts into print, into letters? [page 501]
A. Yes.
MR. MacKENZIE: I show you a copy which we don't have numbered at this point, Your Honor.
It was going to be used for impeachment. If we could call it No. 203 --
MR. MITTEL: I'm sorry. What number?
MR. MacKENZIE: 203.
MR. MITTEL: Is there a 201 and 202?
THE COURT: Wait till I check the clerk's register.
The highest number I have is 200.
MR. MacKENZIE: I'm sorry, what?
THE COURT: The highest number sI have is 200.
MR. MacKENZIE: Well, then, let's call it 201.
(A letter from Mr. Motta to
Mr. Ellis was marked
Plaintiffs' 201 for
Identification.)
BY MR. MacKENZIE:
Q. Do you recognize this letter, Mr. Star?
A. Yes, I do, sir.
Q. Is this a letter written by Mr. Motta?
A. Yes, it is.
Q. Would you read for us, please, the portion of the [page 502] second page beginning down, halfway down?
A. Quote "You say it will cost about twelve
thousand pounds to have these {SIC sb. "the thieves" --def}
'terminated.' I'd like you to be
frank.{SIC sb. "I like your elegant phrasing" -def}
It's up to the best
standards of the Mafia, CIA, of
the British Secret Service when
there was a meager point there
{SIC sb. "need or point in it -def}.
Well, for that much money you
might as well have them sued,"
end quote.
Q. Continue, please.
A. "In short, frater, very simply if
you are going to have your
assassination contracted to third
parties, for once you make a pathic
criminal {SIC sb. "pact with criminals" -def}, you are entirely in their
hands. First you pay them to kill
someone, then they blackmail you
into cooperation with them for the
rest of your life on the strength
of it,"
end quote.
Q. And on the top of the next page, please? [page 503]
A. Quote: "I would go on putting up with you
until you either grow up or until I
can find someone else who will show
moral courage to control lawyers
enough and physical courage to kill
thieves as well as enough witnesses
to get away with it without being
committed to professional criminals
at any level,"
end quote.
Q. Now, if I ask you your impression of what -- when Mr. Motta used the term "termination," what can you tell me?
MR. MITTEL: Objection. He's neither the author nor the recipient of this document.
THE COURT: Yes, that's right. I don't think he's in a position to answer that question.
MR. MacKENZIE: All right, Your Honor.
BY MR. MacKENZIE:
Q. Mr. Starr, I'd like to show you a copy of Plaintiffs' Exhibit 73 and ask you if you recognize that letter?
A. Yes, I do, Mr. MacKenzie.
Q. Is that a copy of the letter which you provided to [504] the plaintiffs?
A. Well, in this respect, a copy that I provided to the plaintiffs was not as this would appear, a carbon copy, but had the OTO seal imprinted on the top.
So I would say it's a copy of the original letter rather than a carbon. That is what I provided.
Q. I see. You're saying you provided the plaintiffs with a xerox copy of the original letter?
A. Yes, that's what I believe it to be.
Q. And that this copy appears to be a carbon copy?
A. Yes, it is, because the OTO seal is not at the top and it was on the copy I provided.
MR. MacKENZIE: Thank you very much.
I have no further questions.
Thank you.
THE COURT: Thank you.
MR. MITTEL: May I have a moment, Your Honor?
THE COURT: Yes.
MR. MacKENZIE: Oh, I'm sorry. May I ask one other question?
THE COURT: Yes, sure.
BY MR. MacKENZIE:
Q. Let me preface it by saying that the nature of Mr. Motta's Cross-Complaint for invasion of privacy concerns [page 505] contents of letters that he wrote concerning is sexual organs. And having said that I would like to ask:
Did Mr. Motta often talk about his sexual organs?
A. It was a subject of conversation on two or three times, perhaps, perhaps, and the letters dealing with it.
Q. Have you seen numerous letters which he had written concerning that subject?
A. Numerous? I would say perhaps four or five.
Q. Has de dealt with this subject in any of his books?
A. Certainly, in his book "Sex and Religion" in "Equinox Volume V."
Q. Well, is he specifically talking about his own sexual organs?
A. Absolutely. And it was followed up with another letter that I once read that indicated he was talking about himself.
MR. MacKENZIE: Thank you.
No further questions.
THE WITNESS: Thank you.
CROSS-EXAMINATION
BY MR. MITTEL:
Q. Good afternoon, Mr. Starr.
A. Good afternoon, Mr. Mittel. [page 506]
Q. Membership in the A.'.A.'. is something that is not shared with other people; is that right?
A. No, that's not correct, Mr. Mittel.
In fact it's part of the ultimate probationer or the test of a probationer is that you shall speak of the A.'.A.'. and your contact with it to whomever seems to be interested in it.
Q. What I'm saying to you is: There is no reason that you would know whether someone in Kentucky was a member of the A.'.A.'.?
A. Not unless they were my students or if I knew it from some other channel. But officially, no.
Q. So Mr. Motta could have had students in Indiana or Montana and you wouldn't have known about them unless they were in your chain of instruction?
A. This is correct, sir.
Q. You referred to the SOTO constitutions, the typed version, the printed version?
A. Yes, I did, sir.
Q. The typed version was never published, was it?
A. Published in what sense, sir?
Q. Well, I mean it was never promulgated as any type of official document?
A. It most certainly was, sir, within the Order.
Q. And then later amended by the printed version which [page 507] is now in effect?
A. That is my understanding, sir.
Q. You testified about the "Magick Without Tears'" manuscript that Mr. Motta was working on in Maine during the trial?
A. That's correct.
Q. Did you not proofread the manuscript?
A. I proofread a manuscript. It was not the final manuscript as there were many changes made and additions that I never saw, --
Q. But you've --
A. -- to wit: the entire intelligence services are not intelligent, the entire introduction and several other minor parts.
Q. Have you ever sat down and made a comparison of the version on which Mr. Motta was working in that motel room in Maine, the final version?
A. I am not quite sure I understand your question, sir.
Q. Well, have you ever sat down and read, compared the pages?
A. Oh, yes, sir. I have a part of the typed transcript.
Q. And you've done it; you've made that study?
A. Yes, but I don't have the entire book, sir. [page 508]
Q. Now, when you were in Maine with Mr. Motta, it was early in March; is that right?
A. That's correct.
Q. And that was in the winter; right?
A. That is correct.
Q. Lots of snow and ice on the streets?
A. There was quite a bit.
Q. In fact, there was a big storm while you were there?
A. No question about that, sir.
Q. And lots of people were falling down?
A. Yes. But "lots of people" weren't drunk, Mr. Mittel.
Q. Mr. Starr, do you indulge in alcohol?
A. I have been known to on occasion, sir, yes.
Q. Don't you have a medical condition that makes it almost a certainty that you'll become violently ill if you have more than perhaps one drink?
A. That's completely absurd, sir, and it sounds like a product of Mr. Motta's imagination.
If I have such a condition, I should certainly like to find out about it. But I am not aware of it.
THE COURT: Mr. Starr, just answer the question. [page 509]
THE WITNESS: Okay, sir.
THE COURT: If there's anything further that should be brought out, your counsel can do it on redirect examination.
BY MR. MITTEL:
Q. Now did you first happen to have contact with the plaintiffs in this case?
A. The plaintiffs?
Q. Yes, sir.
A. I believe I received a letter in 19 -- early 1976 from Dr. Regardie, who's now dead, who gave me Grady McMurtry's address as a legitimate OTO representative.
Q. When after you resigned from the Society Ordo Templi Orientis, did you first have contact with the plaintiffs in this case?
A. I wrote to them immediately, sent them a copy of my resignation.
Q. You talk about the letters that -- and printed material that Mr. Motta has generated about his sexual organs?
A. Yes, sir.
Q. Do you know if any of that was generated prior to the time you found out that the plaintiffs in this case were circulating a twenty-year-old letter of his to Mr. Germer? [page 510]
MR. MacKENZIE: Objection. That hasn't been established.
THE COURT: Yes, you brought up the subject matter and the question as to the type of his knowledge. I think it's proper cross-examination.
THE WITNESS: Could you repeat the question, please?
BY MR. MITTEL:
Q. Well, let me backup a little bit.
You do understand, I believe, that Mr. Motta wrote a letter to Mr. Germer back in the 1950s in which he discussed his sexual life?
A. Yes, sir.
Q. And you do know that there's evidence, at least in the discovery phase of this case, to the effect that the plaintiffs were circulating that letter after they had obtained the library from Calaveras County?
A. Yes, I'm aware of that. Yes, sir.
Q. You're aware that Mr. Motta found out about that, mainly that they were circulating it some time, I think, in the late 1970s; is that right?
A. Yes, that's my understanding.
Q. And my question to you is: Do you have any knowledge that Mr. Motta made any public or even other private revelations about his sex life to anyone before [page 511] he found out that those letters or that letter was being circulated by the plaintiffs?
A. No, I do not have any such knowledge.
Q. Did you know Jim Wasserman before the trial in Maine, last --
A. No, sir.
Q. -- March.
Hat you ever met him?
A. No, sir.
Q. Now, you testified during the trial in Maine, did you not?
A. Yes, sir.
Q. And at that time you said that Mr. Motta was the Outer Head of the Ordo Templi Orientis, did you not?
A. Yes, sir.
Q. And, in fact, you also said that the fact that he's an Eleventh Degree member of the Ordo Templi Orientis does not disqualify him from being the Outer Head?
A. That is quite true.
Q. Did you also testify that several hundred people had come to you about joining the Society Ordo [page 512] Templi Orientis and because of Mr. Motta's rigorous screening process only two people had made it through the preliminary screening process?
A. That is quite true, sir.
Q. Did you also not tell me that Mr. Motta is a very demanding teacher?
A. That is quite true, sir.
Q. And that he behaves with probity?
A. This is quite true, sir.
Q. All that testimony was given under oath?
A. That is all under oath, sir.
MR. MITTEL: Your Honor, rather than read that testimony into the record, because I'd like all substantive evidence which we're permitted under the Hearsay Rule, I'd like to just submit the copies of the pages of the transcript in question.
THE COURT: But please identify the pages because I don't want to have to read the whole volume.
MR. MITTEL: Oh, no. I'm only going to submit the relevant pages, but I'll tell you right now what they are.
THE COURT: Well, I think we're better off marking -- well, perhaps you want to recite them for the record, then.
MR. MITTEL: 251, 252, 272, 273, 274 and [page 513] 277.
I may do that with some of the testimony of Mr. McMurtry and Mr. Wasserman as well.
THE COURT: Okay.
BY MR. MITTEL:
Q. One moment, please.
Let me ask you this, Mr. Starr:
During the trial in Maine did Mr. Wasserman come over to you and introduce himself?
A. Yes, he did.
Q. And did you react adversely to that?
A. I certainly did.
Q. And did you say to him that he was a week of bad news?
A. I don't remember saying anything like that, sir.
Q. Do you remember what you did say to him about him?
A. Not at this moment, sir.
Q. But it was something unfavorable?
A. I didn't think it was a good idea to talk to him, yes.
MR. MITTEL: No further questions, Your Honor. [page 514]
THE COURT: Any redirect, Mr. MacKenzie?
MR. MacKENZIE: Yes, Your Honor.
REDIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Mr. Starr, what compelled you to resign from SOTO after the trial?
A. Well, there were basically three reasons.
MR. MITTEL: Objection, Your Honor. That is --
THE COURT: Yes, I don't believe that was covered in your direct or Mr. Mittel's cross. I think you're going beyond the scope of cross.
MR. MacKENZIE: I am sorry if that was the case. I suppose what I'm trying to tie it into is in the light of the lauditory things that he said at that trial how he can reconcile his present --
THE COURT: All right, fine. If it's admitted it for that purpose, then I will allow you to continue your examination.
BY MR. MacKENZIE:
Q. For that purpose, Mr. Starr, can you reconcile why you said things at the trial and why you have since resigned?
A. Well, sir, at the time of the trial I was very shocked an very surprised that he would claim to be the [page 515] Outer Head of the Order. It was something that he had never done before and something that he had vigorously denied on many occasions.
And I thought he could only be doing it for a very high purpose. And I was -- I didn't know what to make of it.
So I took it on trust, ad I took many other -- many things on trust with him.
Secondly, I was -- I became aware, after the trial, of the letter from Karl Germer to him dated April 20th, 1962, discussing his proposed OTO charter.
It was clear to me from reading that letter in conjunction with the other correspondence I had read that there was an offer of a charter from Mr. Germer, but that offer was never acted upon.
Thirdly, and probably most basically, I just woke up and saw the light, like many other people who worked with Mr. Motta and thought good things about him and then one day realized it just wasn't so.
Q. How old are you now?
A. I'm 25 years old.
Q. And how old were you when you joined the SOTO?
A. Well I would have been 20 years old.
MR. MacKENZIE: Thank you.
No further questions. [page 516]
THE COURT: Thank you, Mr. Starr.
You may step down.
MR. MITTEL: Your Honor, --
THE COURT: Oh, yes. I am sorry.
Just a moment, please.
RECROSS EXAMINATION
BY MR. MITTEL:
Q. Mr. Starr, while you were a member of the Society Ordo Templi Orientis, did you undertake to prepare a history of the Ordo Templi Orientis?
A. I had planned to do such a thing. I have never written such a thing.
MR. MacKENZIE: Your Honor, I think this is going beyond the scope of direct or cross or redirect.
MR. MITTEL: Well, we are discussing the so-called history of this letter of April 20th, which I understand might be -- we can express in from Maine.
THE COURT: All right. You may ask the question.
BY MR. MITTEL:
Q. And as part of the preliminary part of your task, did Mr. Motta give you a volume of correspondence between himself and both Mr. and Mrs. Germer?
A. Yes, sir.
Q. And in that correspondence were there letters, [page 517] numerous letter, referring to Mr. Motta's status in the Ordo Templi Orientis?
A. I can't recall a single letter to that effect, except from Mrs. Germer.
Q. You don't recall a letter, for instance, about the Ninth Degree?
A. Absolutely not.
MR. MacKENZIE: Objection, Your Honor.
THE COURT: It attempts to refresh his recollection. I will allow it.
MR. MITTEL: I think in the interests of saving time, rather than getting all the documents and pursuing the point, we'll introduce -- maybe I should -- well, we will be introducing the documents.
Your Honor, the collateral estoppel, does that preclude the defendants from proving Mr. Motta is a member of the Ordo Templi Orientis?
THE COURT: No, it doesn't prevent that at all.
MR. MITTEL: All right. Fine.
No further questions.
THE COURT: You may step down, Mr. Starr.
Thank you.
(Witness excused.)
MR. MacKENZIE: The plaintiffs call Bill [page 518] Heidrick at this time.
WILLIAM HEIDRICK,
called as a witness by the plaintiffs, having been first duly sworn, was examined and testified as hereinafter set forth.
THE COURT: Would you be seated and state your full name for the record and spell your last name, please.
THE WITNESS: I am William Emmett {SIC sb. "Emmet" -pla} Heidrick, H-e-i-d-r-i-c-k.
DIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Mr. Heidrick, where do you reside?
A. I reside in San Anselmo.
Q. And how long have you lived in California?
A. All my life.
Q. Are you a member of the OTO?
A. Yes, I am.
Q. And what degree do you hold?
A. Ninth Degree.
Q. Do you hold any positions in the Order?
A. Yes. I am primarily the office of the Grand Frater General {SIC sb. "I have primarily the office of the Grand Treasurer General" -pla}. I'm Assistant Secretary called Secretary of Grand Lodge. And I'm also the Archivist.
Q. How big are the archives? [page 519]
A. Well, it's difficult to give a precise estimate. The archive, in terms of loose papers and letters, would certainly exceed 50,000 sheets. In terms of books, that's even more difficult to assess. Hundreds, I would say. I would consider my own library ultimately to be destined for those.
Q. When were you initiated?
A. 1977, the month of April.
Q. And into what degree were you initiated?
A. Minerval.
Q. Minerval is the First {SIC sb. "first" -pla} Degree?
A. It's entry-level degree. That degree is also called the First {SIC mb. ", there is a degree also called the First" -weh} , but it is, in fact the only entry to the OTO.
Q. You begin on the First and then the next one is called First and so forth?
A. That's correct.
Q. All right. Do you know of the SOTO uses the Minerval?
A. I understand from its published writings that it does not.
MR. MITTEL: Objection, no basis, foundation. Move to strike.
THE COURT: Well, it is public writing, and he's answered. [page 520]
BY MR. MacKENZIE:
Q. Can you give me a very brief description of how the OTO, and I'm speaking of the history of it, since the time you joined, conducts its activities both among members and the public?
A. Well, you might point a little more closely to what you want, but essentially we hold meetings. We have a regular method of arranging meetings from letters, from form letters prepared by computers. We have monthly remakes of our list. We have the monthly bulletin to members on a local -- necessary letters, larger numbers of camps, chapters will be through the word {SIC sb. "World" -pla}
Q. How often are meeting held?
A. Locally for installing -- this is most often the reason, an average of two or three times a week.
Q. I see. Does the OTO sell any products?
A. Yes, quite a few. We have approximately 40 or 50 items available at different times out of this area. And the various camps, chapters and lodges occasionally raise funds for the operation, or such means.
Q. Now, could you briefly describe the different lodges, camps and chapters?
A. I can. Essentially it {SIC sb. "a camp" -weh} is more of a physical body. It could be set up for any purpose. It's sometimes material: it's sometimes for a particular need. Might {page 521] be a study group; might be for some project.
Q. And a chapter?
A. A chapter is more advance, is required to keep records directly, but not always initiation.
Q. And a lodge?
A. A lodge is the protegen {SIC sb. "protean" -pla} body. That is, it should have all the functions such that if necessary it could take over the entire operation of the Order. It doesn't generally have enough records for that, however.
Q. How may such lodges exist?
A. Well, that's sort of a matter of looking at a sheet of paper, but I would say --
Q. Well, don't you --
A. --maybe if I recounted, it would be --
Q. Don't you have a list of them somewhere?
A. Okay. In the United States we have a grand Lodge called the Thelema Lodge.
In New York we have the Tahuti Lodge, the lodge upstate.
There is --
Q. There is no need to give the lodge name, just where they are located.
A. Two lodges upstate, New York.
One in Connecticut.
Three in California. [page 522]
Three in Canada.
There was one in Oceania. That's located in New Zealand. And Australia.
Q. Okay. That's fine. Now many members does the OTO have.
A. Well, at my last billing, which is two months, 770 give or take five.
Q. Now, when you take "billing," do you mean dues?
A. Absolutely, with certain exceptions set aside by the Board of Directors.
Q. Are you familiar with the procedures of the OTO, the Agape Lodge during the days of the 1940s?
A. I have become familiar.
Q. Can you compare the OTO's current procedures with those?
A. Yes. Substantially they are identical, except we now have some different laws that we must follow in the State of California.
And, of course, we have a vastly larger membership and an international membership that is quite large.
Q. When you saw {SIC sb. "say" -weh} there are certain laws in California, did you follow them?
A. Are you talking about corporation law?
Corporation and also for nonprofit. There [page 523] are restrictions.
Q. I'd like to show you Plaintiffs' Exhibit No. 40 and ask if you would tell me what that is?
A. All right. I made this photocopy from the first edition of what is called the "Blue Equinox." It is the extract of the Constitution of the Order under Aleister Crowley.
Q. Would you just explain briefly what Aleister Crowley did when he wrote this, this prior Constitution?
A. Two --
Q. Well, specifically the 1917 one.
A. Yes. We have the 1917 Constitution, which has only partly survived in original form, but we have a transcript. And to the best of my knowledge, based on the study of Crowley's publication, he broke that up for reporting to the members into several categories, privileges and rights, with on of them things to expect and things expected of you. And this was his administrative section for that, this abstraction of administrative structure he made.
Q. Well, does --
A. Go ahead.
Q. -- the "Blue Equinox" replace the 1917 Constitution?
A. At the time it didn't, but it did subsequently when Crowley became Outer Head of the Order. [page 524]
Q. Does the 1917 Constitution get employed in any way at this time?
A. For ambiguities. This is, after all, an abstract. And you have to refer to the original document on some points. There are differences here that are constructed so that we had reason to have them from this over and above the 1917.
Q. I'd like to have you turn to page 244 of this document or of this abstract.
A. 244.
I have it.
Q. And would you read the bottom paragraph that's been marked, please.
A. Yes.
"The OHO is supreme in the Order and
will act in such manner as he may see
fit. You may have him be removed
from office but only by the unanimous
vote of all the members of the Tenth
Degree."
Q. Would you explain just what that means?
A. -- do you need that explained as well?
Q. No, I think we understand that.
A. Okay. It means that he's supreme, that his actions are without anybody stopping him or changing them in a [page 525] certain emergency.
Q. And, in fact, who is responsible for the removal portion?
A. Well, if every member of the Tenth Degree says he's out, he's out.
Q. I see. Do you keep a record of memberships?
A. Absolutely. We're required to.
Q. Required to?
A. Yes.
Q. Under what authority is that?
A. State law and the Articles and Bylaws of Incorporation.
Q. When did the corporation -- when did it incorporate?
A. 1979.
Q. I'd like to show you Plaintiffs' Exhibit 39.
A. Yes.
Q. What is that document?
A. This is a typed copy of the 1917 Constitution under the Outer Head of the Order, Theodore Reuss, R-e-u-s-s.
Q. And Mr. Reuss was the first Head of the order before Mr. Crowley?
A. That is true, under the name of the Order presently in force.
MR. MITTEL: Your Honor, I'm going to [page 526] object to the offering of this document. I realize that there is a stipulation in which I did not indicate such an objection, but that's because in the Interrogatories that I asked about the basis of the documents on which the plaintiffs were relying to make their ownership claims or their -- Mr. McMurtry's claims to the Outer Head, this document was not mentioned.
It is the first time that I've seen it in this case. It has not been previously produced; it has not been previously mentioned.
And specifically, besides on the grounds of surprise, I want to raise objections as to its authenticity and hearsay.
MR. MacKENZIE: Well, I would answer that in two manners, Your Honor.
Mr. Heidrick has told me that he mailed this personally to Mr. Mittel. I don't know that fact for myself.
Furthermore, the basic reason, though, for relying on this Document 39 is really to establish the use of the Order's name or the form of the "Equinox" as something that's inherited in the OTO.
MR. MITTEL: It it's only offered to show the use of those two names, then defendants have no objection with the reservation that it does not mean we [page 527] would concede or stipulate hat those two names are tradenames that would be owned by anybody, let alone by either of the parties.
THE COURT: Well, it may be so, then.
BY MR. MacKENZIE:
Q. Mr. Heidrick, if you would turn to the fifth page of this document --
A. Yes.
Q. -- in which it states there are presently two official organs of the "Oriflamme" and "Equinox" halfway down in Article 14.
A. I see it.
Q. What are those now?
A. Well, the "Oriflamme" was the -- originated as a German language official publication of the Order.
It was all over -- publication called an "I.N.R.I." that was printed usually within it.
Q. Well, let me just cut you short, if I can.
Are these names of publications that the OTO had in those days?
A. Yes. And they've been used intermittently through Crowley's time.
Q. Are they in use at this time?
A. Not by the lawful representatives of the OTO.
Q. What do you mean? Are you saying that the [page 528] defendants are using them?
A. I'm saying that we aren't using them at the moment, but intend to if we're permitted.
Q. Are the defendants using those names?
A. Yes, they are.
Q. All right. Thank you.
I'd like to show you a series of three documents numbered 73, 74 and 75. Please identify those.
A. Okay.
Yes. 73 is a photocopy of a carbon copy of a letter I wrote to Marcelo Ramos Motta.
No. 74. is a photocopy of both sides of a mailer sent about the same time to Marcelo Ramos Motta.
Q. Isn't that the mailer in which you placed the letter?
A. That was my original recollection, but when this mailer was opened in my presence not long ago it was not found in it.
Q. Well, just answer the question, please.
A. I can't recollect, clearly recollect whether it was sent this way or separately.
I appended it -- put it in here, but I don't know whether I actually did.
Q. And Exhibit 75? [page 529]
A. No. 75 is one of the notices that was definitely enclosed with the mailer, of Exhibit 74.
Q. Now, what is the general import of 73 and 75?
A. Well, this form -- well, form 73 just went to Mr. Motta. And form 75, since we put this in one of our publications, everyone has read it that have claimed membership in OTO from before 1977. You had to repeat that claim to us within a certain time limit or abandon it.
Q. Turning to page 2, you write:
"We are obliged to keep a record of
our membership. To do this we must
establish that membership accurately
and at once. We have a time limit
of August 1st, 1975" ---
A. '79.
Q. Excuse me.
"'79 as extended in your case."
A. That's correct. I did write that.
Q. What was your purpose? Why were you obliged to send this letter?
A. Our papers of incorporation and state law required that we have an accurate list of members. We just incorporated the Order. And there were certain people who claimed rank and some of them we knew a bit about [page 530] and some of them we didn't.
And we made very sure that each of these people were notified of this event and the possible repercussion of failing to register that claim with us to continue membership.
Q. You write:
"If we do not receive a formal claim
to membership in the OTO from you by
that date, we will have to exclude
your record of membership from our
ranks."
A. That would be a new record, yes.
Q. And Exhibit 75 seems to be the same kind of message; is that correct?
A. Not quite.
Exhibit 73 is a personal to Mr. Motta whereas 75 starts with the official resolution of our Board of Directors and then the material in italics below it, most of the page, with my witness of the discussion and what it meant on that resolution.
Q. Did you ever receive a response from Mr. Motta?
A. Some years ago and not directly to this, but it did mention this.
Q. Well, did he ever write or return a letter and include a formal claim to membership in the OTO? [page 531]
A. Not within that time limit or that year or the next.
Q. Has he ever made a claim to membership in the California OTO?
A. I can't say that he ever did, as far as I know, pursuant to this letter.
Q. Do you know if he received this letter?
A. Yes.
Q. What is the basis for your belief that he received your letter?
A. Well, Mr. Star gave us a copy of it which had the letterhead. And I only retained the carbon copy. So I had no way of producing that copy with the letterhead and with the clear type. And the only place that went was into the mail with Mr. Motta's address on it.
Q. What you're saying is that original letter had the letterhead and you used carbon copies rather than photocopies?
A. That's right. I retained the carbon which had no letterhead. This letter from Mr. Starr's production had that letterhead.
Q. Thank you.
MR. MacKENZIE: I would at this time ask that these be entered, Your Honor. There was an objection made at one time. [page 532]
THE COURT: There was an objection made?
MR. MacKENZIE: I'm sorry?
THE COURT: You say there was an objection or there was no objection?
MR. MacKENZIE: No, there was an objection.
THE COURT: You're saying --
MR. MITTEL: Hearsay and irrelevant, Your Honor.
THE COURT: Which numbers again?
MR. MITTEL: 73,74 and 75, plaintiffs'.
THE COURT: Those may be admitted into evidence.
MR. MacKENZIE: Thank you.
(Plaintiffs' Exhibits 73,74 and 75 previously marked for identification were received in evidence.)
BY MR. MacKENZIE:
Q. You stated that the OTO since incorporated.
By way of officers, can you explain the parallels with this corporation and with Order?
A. I think so. You might have to spot me a little further to get what you want.
Q. Well, the position of the Caliph.
A. Yes. Caliph is equivalent to the president of a corporation. [page 533]
Q. And the secretary?
A. That's titled Grand Secretary General. And that's the secretary of a corporation, as well as the treasurer. That's titled Grand Treasurer General, and that's my office. And it's equivalent to a treasurer of a corporation.
Q. Thank you.
And how often now does the corporation meet?
A. Well, for regular meetings of the Board, ten or so times a year.
Q. Okay. Thank you.
Are you a nonprofit corporation?
A. We are.
Q. Now, this -- had such a letter, such as Exhibit 73, kind of a reaffirmation of membership, was there any precedence for that?
A. Yes. Our precedence is drawn from the similar letter sent out by Karl Germer in 1943.
Q. I would like to show you Exhibit No. 22 and ask you if those are such types of letters sent by Karl Germer?
A. Yes. These are three such letters.
And they took the form, in this instance, of a little bit simpler sort of statement. It is --
Q. Okay. That's --
A. -- a renewal of allegiance oath signed by the [page 534] people who received it and returned it.
Q. I show you Plaintiffs' Exhibit No. 32 and ask you for its identification.
A. Yes. These are -- there are two pages here.
The first page is excerpts obtained by blanking out irrelevant material, matter, that is, just names from the records of membership of Agape Lodge beginning in a portion of 1939 and ending sometime in 1941.
And the second page is a particular account of the initiation of Grady L. McMurtry. And this is signed by the then Secretary, Jane Wolfe.
Q. Now, does this record -- you state that Minerval was on there?
A. Yes.
Q. Did you state previously that that was the fundamental entrance?
A. Yes. You can't get in without making that ceremonial initiation.
Q. I'd like to show you Plaintiffs' Exhibit No. 79 and just ask if you would identify that?
A. That's a cover of an issue of the "Oriflamme."
Q. And when was that published?
A. June 21, 1945 by Agape Lodge, which is a body that [page 545] had the other "Equinox."
Q. Now, you're familiar with Aleister Crowley's death?
A. I beg your pardon?
Q. Are you familiar with the facts of Aleister Crowley's death?
A. Yes. By personal account in letters and by quite a few of them at that.
Q. He left the archives to the Order?
A. Yes, he did.
If you mean his personal property of a literary nature --
Q. Yes.
MR. MacKENZIE: Oh, there's an objection to 79 as being incomplete.
I move that it be entered at this time. It's not entered to show the content, Your Honor, only to show that such a thing was published.
THE COURT: What is the purpose of your entering this?
MR. MacKENZIE: Simply, Your Honor, to show that in the 1940s -- it was stated in the earlier documents, and in the 1940s it was still in existence, so it continued to be associated with the OTO.
THE COURT: It may be admitted for that purpose. [page 536]
BY MR. MacKENZIE:
Q. When Karl Germer came into possession of the archives, was he holding them personally or for the Order?
A. Well, he acquired them through Crowley's will, so he couldn't hold them in person. He had to hold them for the Order.
Q. At that time where was he living?
A. I believe he was living on the East Coast. I believe it may have been new Jersey or New York. Hampton, New Jersey.
Q. Okay. And when did he move to California?
A. I don't know the exact date. I believe that's in the testimony from somebody else.
Q. Do you know the decade?
A. It should have been sometime in the early 1950s, early.
Q. Do you know if the archives were intact when he brought them to California?
A. That's almost impossible. According to his own account --
THE COURT: What did you say? I didn't bear that.
THE WITNESS: It's almost impossible. It would be in doubt, because his own accounts found [page 537] with -- what de have of those archives, he describes depredations on the East Coast, losses.
BY MR. MacKENZIE:
Q. I'd like to show you -- well, do you know if he ever sent -- did he ever send the archives anywhere else?
MR. MITTEL: Pardon me.
May I move to strike the previous answer on the grounds of best evidence?
Also it's documented in evidence. It shows that Germer lost or somehow couldn't bring all of the archives to the West Coast.
MR. MacKENZIE: Just coming up to that, Your Honor.
THE COURT: Yes.
MR. MacKENZIE: It's Exhibit No. 125.
BY MR. MacKENZIE:
Q. Let me ask you if that is one of the documents that you are relying on in saying that Mr. Germer transferred possession of this --
A. This is a lesser and later document, but it does state -- it's from Gerald Yorke to Mrs. Germer -- and it does state that Karl was afraid of losing these things from the library or archives at West Point.
Q. Could you just read the -- [page 538]
A. Yes, I'll read that section. That's better.
"Karl always feared that the OTO
archives were not safe at West
Point and so sent me the
important" --
manuscripts -- that's the abbreviated MSS --
"for safekeeping.
"I only lack one important" --
manuscript, again abbreviated Capital Miss Seckler {SIC sb. "MS" -pla -def} --
"namely that of the original
manuscript of the "Book of the
Law."
Q. So can you tell me the date of Karl Germer's death?
A. Yes. That would have been in October of 1962.
MR. MITTEL: Your Honor, could I have a ruling on my motion to strike?
THE COURT: Sorry. Which one?
MR. MITTEL: The one concerning the testimony about the loss of {SIC sb. "or" -weh} the diminution of the archives in moving between New Yorke {SIC spelling error for "New York". Where this occurs elsewhere below, the correction is made here without further notice. -weh} and California.
There's been no evidence offered at all in the way of documents to support that.
MR. MacKENZIE: I think that letter states that --
THE COURT: Yes, yes. I think that's [page 539] right.
I think you objection really goes to the weight of the evidence.
MR. MacKENZIE: I'm sorry.
BY MR. MacKENZIE:
Q. The date of the Karl's death?
A. October 1962.
Q. I'd like to show you Plaintiffs' Exhibit 116.
A. Yes.
Q. What is that?
A. This is that portion of Karl Germer's final diary kept by his wife during the time when he was unable to write in it, notes in the diary.
Q. That is her handwriting?
A. Yes, it is.
Q. Are you familiar with its contents?
A. I'm sad to say I am.
Q. I'd like to draw you attention to the page dated October 25th.
A. Yes.
I've got that.
Q. Is that the date on -- or the date of entry reflecting Karl Germer's death?
A. It is.
Q. And where was Karl Germer at the time of his death? [page 540]
A. He was in a hospital.
Q. Would you read, please, the portions that are under lined on the October 25th, 26th --
A. There is no underlining on this copy.
Q. Well, the, let me give you my copy.
A. In answer to your request, the first section says:
"At 855 p.m. the life of the
Master has ended."
And there's another underlined section on that date.
"Dr. L. came early afternoon and
said suddenly, 'He never talked
to me before'."
Q. Would you delineate what the doctor said, what portion?
He said, "He never talked to me before"?
A. From my knowledge of this document.
Q. What is -- what is the doctor saying? Read the portion that the doctor is saying.
A. What is just read?
Q. Yes, uh-huh.
A. "Dr. L came early afternoon and
said suddenly, 'He never talked
to me before'."
Q. Go on.
A. I'm going to have to pause from time to time to [page 541] make out her handwriting.
"If it is quieting for you, he
does not feel anything any
more, but this was a lie."
"I only found out earlier" --
Q. Only the underlined parts.
A. Oh, just the underlining. That's right.
"He stated crying out loud,
'Help me, help me'."
And it's underlined twice.
Q. Okay. Would you look at page -- the October 22nd ending page, please?
A. Yes.
I've got it.
Q. Read the underlined portion, please.
A. On October 22nd, she wrote:
"Karl had a stroke. Went to talk,
can't."
Q. Okay. And the October 23rd entry that's been underlined?
A. There is an underline there. Let's see.
"I try always to speak to him.
No response."
Q. Okay. Does the word "Follower" appear anywhere in this diary? [page 542]
A. I have tried to find that deliberately and haven't. I haven't been able to find it.
Q. Does the word have any special OTO connotations?
A. Common English word, that's it.
Q. Do you know if Sascha was ever an OTO member?
A. We found a writing by her, writing where she states she was not.
Q. Now, you have read the entire diary of Sascha Germer, have you not?
A. Well, it actually starts out Karl's diary.
Yes.
Q. Are you able to -- are you able to judge her state of mind at this time when she was writing these entries?
A. Well, I've read an awful lot of people's material. And I can take a shot at it, I think an accurate one.
She was extremely upset and the woman was in the throws of great emotion, confused, not actually cognizant of external events.
MR. MITTEL: Objection. Move to strike the testimony about her mental health.
THE COURT: Well, I think he's testifying as to what he can observe in writing.
I don't think he's testifying as a psychiatric expert. We can all testify to what we observe about one another, how they act and things like [page 543] that, which I think is all this witness has done so far.
BY MR. MacKENZIE:
Q. Let me show you Exhibits Nos. 120, 117 and No. 14.
Take them in that order, please.
A. 120, 177 and 14?
Yes.
Q. Now, let's start with 120.
A. Okay.
Q. What is that?
A. Those are three pages from a calendar, one for July 1969, one October 1969 and one August 1969.
They are heavily noted and it appears to be in the hand of Sascha Germer.
Q. What kind of thins is she talking about there?
A. Well, there are a few things that are just --
MR. MITTEL: Your Honor, may I examine on the question of the handwriting?
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. MITTEL:
Q. Mr. Heidrick, --
A. Yes.
Q. -- how much of Sascha Germer's material have you read?
A. Well, all told it's hard to give an estimate but [page 544] I'd say somewhere in the neighborhood of fifty or a hundred pages, specimens, page specimens, of her handwriting.
Q. And the majority of those antedated Mr. Germer's death?
A. They cover the entire range from her career as a singing teacher in Carnegie Hall till the time of her death.
Q. When did she become a singing teacher at Carnegie Hall?
A. When she fled persecution in Europe and came to this country.
Q. That was in the 1930s?
A. It had to be during the early Hitler period.
Q. And of those fifty to a hundred documents, how many were written, say, after 1966 or '67
A. Well, again, I didn't look closely at the earlier ones, just mostly that period. So I'd say about three-quarters of them.
Q. Were written after 196--
A. Well, let me have that date again, please.
Q. How many were written after 1966 or '67?
A. Oh, '66 or '67?
Well, let's see. Probably about ten or twenty of them, I'd say. Not including the diary [page 545] extensions, which seem to go on indefinitely.
I can't tell when she stopped writing them.
Q. Did you produce all those documents?
A. Yes.
Q. After 1966 and '67?
A. WEll, again, they seem to be -- I'm talking about sheets of papers. They may be bound together or not.
Q. How many in 1969?
A. I see three before me, and I don't recollect that precisely.
Q. Where did you find this document?
A. You mean the one that I have just described?
Q. Yes, sir. This one here we're looking at (indicating).
A. This was found with her personal effects, various things, including her purse.
I think some of these were in the same place where her purse was kept in a box that we received.
DIRECT EXAMINATION (resumed)
BY MR. MacKENZIE:
Q. What sort of things is she talking about?
A. Well, as I started to say, they are simple things that appear to be just notes of time, like 2:00 p.m. and the like.
And then a few words that have no clear [page 546] meaning to me.
But then there are other things that -- atrocities started in, something about a rattlesnake, something about an attack, mania.
There is one rather strange one here, "Karl comes home."
Q. This was written after Karl's death?
A. Yes. Seven years after his death, almost to -- not quite to the day. About a week, seven years and a week or less.
Q. Okay. Thank you.
And No. 117?
A. No. 117 is part of Sascha Germer's handwritten extensions to the Karl Germer diary. This was on separate material, an old Christmas card register.
Q. And what does she say there?
A. In the underlined or in the marked portion?
Q. Yes, in the marked portion.
A. She says:
"As I am no member of the OTO."
Q. All right. Finally, Exhibit 14.
A. Yes.
Q. What is this?
A. This is a specimen of notes found with the rest of this material, Sascha Germer's effects. [page 547]
It appears to be in her hand and there is a reference on one of these calendars. It seems to be an account of something happening to her cats. It's dated August '69, beginning of August 1969.
Q. What is she talking about, cats? What is she saying?
A. Well, she's described a rather strange episode where the cats that she has around the home apparently keep disappearing for days and coming back and finally appear to be dead.
And she hears voices in the bushes.
Q. That's fine. Thank you.
I'd like to show you Exhibit 45 and just ask if you would identify that?
A. Yes. This is the last will and testament of Karl Johannes Germer.
Q. Yes.
THE COURT: Which number is that?
MR. MacKENZIE: I'm sorry, Your Honor. That is No. 45.
THE WITNESS: There are two n's in Johannes.
BY MR. MacKENZIE:
Q. And is he in this will making a disposition of the Order's property? [page 548]
A. Yes.
Q. Was the will probated?
A. No. Not according to the papers found with it.
Q. Incidentally, how many books has Aleister Crowley written?
A. That's a difficult approximation?
Certainly more than a hundred, probably less than two hundred.
Most of them quite thin, just a few pages; some of them quite large.
Q. As regarding the words "Oriflamme" and "Equinox," you stated earlier that you believed that those words were the property of the plaintiffs.
What do you base that on?
A. Well, the -- there were a number of publications in the history of the Order going back to the turn of the century. And these are two of them that were used for official business and to inform the public and to educate the public concerning the action and interests of the Ordo Templi Orientis.
Q. Okay. What is the plaintiffs' position on other people's use of Order property?
A. Well, if they yes these as ordinary words and discourse as part of a larger title, that's -- that's nothing much. [page 549]
But if they're using them in conjunction with our name, it gives the impression that they're speaking as us.
Q. And what about some of the Crowley material?
A. The Crowley material was chiefly published under the name "Equinox."
Q. I'm sorry. I mean getting away from the "Equinox" and the "Oriflamme" for a moment --
A. Yes.
Q. -- other Crowley works under the OTO style, what is your position on other people using it?
A. Well, we have sort of a double view there.
On the one hand, we want to see Crowley's works as widely disseminated as possible in the best form possible, with just a few reservations of our private papers.
And on the other, we're aware that Crowley had several bankruptcies unresolved and that he deeded copyright portions in whole or in part to people we don't necessarily know.
So we simply feel that our ends are best served by encouraging quality production of his writings. And to that end our claim of copyright, we license simply by getting credit for our organization in the form of a proper notice and a proper address. [550]
Q. Okay. I'd like to show you Exhibits 98, 102, 103 and 104 --
A. Yes.
Q. -- and ask you if those are examples of your allowing other groups use of the material for proper credit.
A. Yes. This -- in the case of Askin (phonetic) is such a special example, and the last one is a special exception. That's 104 is the exception.
Q. I'm sorry?
A. 104 is an exception. This was published in Argentina. It's in Latin, or rather a Spanish translation of our "Holy Book", which is the equivalency to the New Testament.
And down in Argentina they had a little difficult politics, so we excused them from identifying membership in an organization. It will risk their lives.
Q. Thank you.
Do you have experience with the charter of individuals to run lodges?
A. Yes. That's usually my duty, to prepare the forms.
Q. I want to be clear now: Who can conduct an initiation?
A. Well, it has to be a person holding a legitimate [page 551] charter in a direct line of descent from Baphomet, which is the name given to Aleister Crowley as Outer Head of the Order.
And there are further limits on the rank that must be held before a charter can be given.
Q. Well, what ranks or levels or degrees can give initiations?
A. We charter -- a person who is Third Degree can be chartered up to, but not beyond, The Third Degree. And that's the named degree. It's actually the fourth.
Q. Because of a Minerval?
A. Because of the Minerval.
Q. I see.
A. And the Ninth Degree can be chartered to conduct any of the initiations in the Order.
Q. So is what you're saying, a Third Degree without a charter cannot initiate?
A. He can try, but he would be expelled on the spot.
Q. What do you base that on?
A. The common practice of the Order and the fact that we have done it.
Q. Well, when you say "common practice of the Order," how common is it?
A. Since its inception.
Q. Has anyone ever attempted to initiate without [page 552] having a charter?
A. Yes.
Q. Did that happen since you've been a member?
A. Yes.
Q. And what response did you take?
A. We held hearings about the matter to determine if they knew what they were doing>
And they were removed from membership about six or eight months later.
Q. Well, what does a charter look like?
A. Well, it's essentially a simple document. We usually have is sealed in a wax seal from Crowley's signet ring. It has to have the date. It has to specify the name of the person who receives the charter. It usually specifies their full possessed degree. It must specify the range of initiation they may undertake. And it may have other details, but it does always include a statement of the alignment of allegiance that they have to the Order.
Q. Let me show you Plaintiffs' Exhibit No. 94.
A. Yes.
Q. And ask you if you recognize that letter.
A. Yes. This was sent to me.
Q. What is the story behind that letter?
A. Well, this letter came from, by the signature of [page 553] the letterhead, Sandra Cobden of the General Council's Office of the Department of Consumer Affairs, City of New York.
It is reporting complaints and asking for information regarding a product sold in a store in the City of New York.
Q. I noticed that under the carbon copies at the bottom Mr. Motta's name is --
A. Yes.
Q. Had Mr. Motta made a complaint?
MR. MITTEL: Objection, foundation.
THE WITNESS: No.
BY MR. MacKENZIE:
Q. Does the letter state if Mr. Motta had made a complaint?
A. Well, there were attachments and the letter states Mr. Starr was the Midwest Director of the Society Ordo Templi Orientis.
I understand that to be Mr. Motta's organization.
Q. And it was from that source that the complaint had been made --
A. That's right.
Q. -- according to the letter?
A. According to the attached letter, it is a complaint [page 554] from Mr. Starr.
Q. I'd like to show you Plaintiffs' No. 78 and ask you if you would identify that for me?
A. Yes.
Okay. This came from the miscellaneous material of Sascha Germer.
Q. Do you recognize -- did she write that?
A. It is in her handwriting. It was found with other papers that she had written, and she signed it.
Q. I notice that a great many of those words are capitalized.
A. Yes.
Q. Do you know why she capitalized so many words?
A. Well, I can only conjecture, based on experience of the German language and people who write in it, that that language frequently capitalizes a lot more than English, especially proper nouns.
And she did speak that language as a native and write it, and she apparently is mixing her rules of writing with English and German.
Q. This is a letter addressed to Mr. Motta?
A. At lease it's a handwritten copy of a letter.
Q. A handwritten copy of a letter?
A. Yes. I have no knowledge as to whether this was intended to be sent or just a copy of one that was sent. [page 555]
Q. I see. And she refers to Mr. Motta as "a follower"?
A. "a Follower," yes, of AC, which would be Aleister Crowley, a common usage of his letters.
Q. She capitalizes the word "Follower, " as she does a great many other words.
A. Yes. It's proper noun. That's the German practice.
Q. Thank you.
Did she, incidentally, capitalize nouns in other letters?
A. Quite frequently in general writing.
Q. I'd like to show you Exhibit No. 76 and ask you to identify that.
A. Okay.
It has all the appearance of being a letter from Mr. Motta to Mr. Germer, I believe.
And that's partly derived from the context and the place where found.
Q. All right. I'd like to read some relevant portions.
A. Okay.
Q. I will do that. And this is halfway down beginning with:
"I have felt for a long time [page 556]
that there were some things
intrinsically wrong with the
OTO."
The next paragraph he writes:
"If I live to do any work of
promulgation of Thelema, I do
not intend publicizing the
OTO or the Gnostic Church at
all. I shall work exclusively
with the A.'.A.'. for initiate
work."
And turning to the second page, Mr. Motta writes to Mr. Germer, the third paragraph:
"I want, however, to make
quite clear that your
behavior in the last two
months and your rudeness
in the question of the
money, especially, have
made banish {SIC} any personal
regard I may have had for
you and I ask you to limit
our contact solely to the
business of A.'.A.'. and the
Order of Thelema insofar as [page 557]
AC has worked out material
on that."
The letter is dated december 30, 1961, which is some ten months before Mr. Germer's death.
A. That's correct, eleven or ten months.
Q. Do you know if Mr. Motta was a member of the OTO?
A. For a fact, I don't know.
Q. You haven't seen anything to indicate he was?
A. I have never seen a clear statement by anyone -- that is to say, by "anyone," I mean anyone known to be an OTO member, which states that he was.
Q. Having looked through the archives, have you found any document or reference to a document indicating that he had ever been initiated?
A. Not a document, no.
Q. It --
A. There was conversational discussion of the OTO, and I, at one time, thought he probably was a member. But I've been constrained by this reparation {SIC sb. "preparation" -pla} to look at everything very hard, and I haven't found any evidence that he was to my eyes.
Q. Okay. Do you know whether he was a member of the A.'.A.'.?
A. It's a difficult question to answer, first of all, because it's none of my business. And I can't really [page 558] hold a proper opinion. But I would suspect that he was.
Q. I want to make sure that we're clear on how the A.'.A.'. works.
A. Yes.
Q. As I believe prior testimony said an initiate only knows the person above him?
A. That has at times been a rule of A.'.A.'. It's been different at other times.
Q. I'd like to show you Plaintiffs' Exhibit No. 72 and ask if you would identify that.
A. Yes. I put a lot of work in on this. It is Volume I, No. I, No. 5 of the OTO Newsletter. It came out in June of 1978. It shows the representations that it is an OTO publication.
Q. And is that the OTO trademark vesica?
A. Yes. It's described as a vesica with an eye and a triangle above, a dove descending and a cup with a cross of St. Andrew below, about equal rays. It's called the lamen of the Order. It's been in use since about the turn of the century.
Q. Have the defendants -- do the defendants us a similar mark?
A. They've got a very similar mark.
Q. What's the distinction?
A. This one is traditional form and theirs appears to [page 559] be colored in.
Q. Is that the only difference, color?
A. And the quality of reproduction, yes.
Q. Have you had public confusion as a result of this defendants' use?
A. Yes, considerable.
Q. Well, what's happened?
A. Well, this is almost a pet peeve. I'm the person that answers most of the incoming correspondence. I've had generated whole sections of form-letter material just to deal with such confusions.
Q. Do you have those on computer?
A. Yes, I do. They were offered to Mr. Motta, through his Director, for possible corrections. I never heard anything from that.
Q. Do you know if you've lost any members of lost sales or products as a result?
A. Well, it's awfully hard to make an accurate assessment of that. But we certainly have lost some. They don't generally send you a letter when they change their mind to stop paying any attention to you.
But a store in New York lost a substantial sale because of it. And OTO meetings are no longer held on the premises, although they were before that time.
A fellow who was interested in joining the [page 560] Order in the South Bay here and San Francisco informed me that he wasn't satisfied as to which was which, which was the legitimate OTO, and he was not going to take any steps because of that.
Q. I'd like to show you Plaintiffs' Exhibit No. 5 and ask you if you can identify that.
A. Yes, I can
This is an item that was sent to me by an OTO member living in Norway. I am familiar with the publication in which it comes, although not this particular issue. This publication is Sphinx magazine. It's a German occult periodical.
Q. Can you read German?
A. Slowly and painstakingly with a certain colloquial translation.
Q. What is --
THE COURT: (Speaking in German.)
THE WITNESS: (Speaking in German.)
MR. MacKENZIE: (Speaking in German.)
THE WITNESS: Well, I think we have some people present who are more fluent that I am in German. All I've got is my recollection of old-school German.
BY MR. MacKENZIE:
Q. Okay. Now, as to that article, that portion of the article called Schuler des Teufelf, which is students -- [page 561]
A. Yes, students of the devil.
Q. What is that article saying?
A. Well, it's --
MR. MITTEL: Objection. He just said that he can barely read German, Your Honor.
MR. MacKENZIE: Both of us. Okay.
THE COURT: Well, can you translate it for the record?
THE WITNESS: I can translate its substance and more of it word for word into plain English, yes.
BY MR. MacKENZIE:
Q. Then why don't you give me a general tenor of this article.
MR. MITTEL: Objection. He can either read it --
THE COURT: Yes, it's short. He should attempt to translate it as best he can.
MR. MacKENZIE: If he's having problems, Your Honor, I'm fluent in German and I can do that.
THE COURT: Well, that's fine. I don't care.
THE WITNESS: I'm sorry I could read --
THE COURT: I'll accept your translation.
MR. MacKENZIE: All right. That's:
"A debate over the rights to [page 562]
the literary follower of Aleister
Crowley led to charges being brought
against two people who tried
to" --
The verbs are always at the end of the sentence --
"Who tried to start a fire in
the" -- "in the room of the
publisher Rutledge & Kegan
Paul in London, Jeremy Ellis
and Graham Sherin, both 24
years old" --
The top line is missing --
"but who belong to the OTO
and who are members of the
OTO. Both were found guilty
carrying instruments for an
arson. And Sherin admitted
that he got a piece of the
incendiary device from some
polytechnical school.
"The judge found the case
bizarre and somewhat
perplexing. The district
attorney spoke of
resentments of the" -- [page 563]
I'm not sure what the next thing is.
THE COURT: Order of the east.
MR. MacKENZIE: -- "order of the east.
Since their attempt didn't
lead to anything and their
reasons did not seem
justified, their alibis, the
defendants -- the attorneys
said their clients were
members of an occult who
practice occult rather than
an isolated sect."
And there is nothing about the results of the judge's decision.
I don't think I need -- well, let me just ask you this:
BY MR. MacKENZIE:
Q. Was Jeremy Ellis ever a member of plaintiff, Ordo Templi Orientis?
A. Absolutely not. I keep track of those on the mailing list, and I have never seen that one go by, especially before we used the computer on those listings. It was awful.
MR. MITTEL: Your Honor, am I clear that Mr. MacKenzie's rendition of the article is not in [page 564] evidence but only a translation?
THE COURT: No, that's simply a translation.
MR. MITTEL: That document has not been offered and that's one of the documents to which we object.
THE COURT: On what basis?
MR. MITTEL: On the basis of authenticity and on the basis of hearsay and on the basis of relevance.
MR. MacKENZIE: Well, I think the relevance is quite clear. Mr. Ellis was a member of Mr. Motta's association, a member of his Board of Directors. And he's been confused with my client.
The authenticity, I don't have any way of authenticating other than when Mr. Heidrick received it.
THE COURT: I will admit it subject to motion to strike at the conclusion of plaintiffs' case.
BY MR. MacKENZIE:
Q. Did you ever notify the defendants about what you felt was an infringement of the --
A. Yes, I did.
Q. -- copyrights?
And that's Plaintiffs' Exhibit No. 117?
A. Um-hum. It think this was about the first such [page 565] notification that I took part in. There may have been one earlier. There certainly was some after.
Q. And when did you write this letter?
A. March 3rd, 1981.
Q. And you addressed it to the Society Ordo Templi Orientis?
A. To Martin P. Starr of that Society.
Q. Would you read the portions that I have underlined?
A. Okay. Part of it is a sentence fragment.
"Other than F. I. Regardie.
Specifically we do not
recognize any right to
publish, copyright,
translate or edit the works
of Aleister Crowley by M. Motta,
your own principal or grant
other persons. We would" --
is the sentence fragment.
Q. Yes. Continue on the next page.
A. "We would be happy to receive
a letter from" --
Q. Just the underlined part, Mr. Heidrick.
A. Okay. Underlined:
"Mr. Motta is not now a
member of the Ordo Templi Orientis [page 566]
as of April of 1979 e.v."
That stands for era vulgeris, for the common year most often represented as A.D. That's parenthetic. When he declined to register a claim to continue membership.
"As a past Third Degree
member, Mr. Motta has no
custodial or trusteeship
rights in the property of
the OTO.
"We have take no action
to date with regard to the
literary" --
I'm afraid that was a strikeover and this was a carbon. I can't read it --
-- "of Mr. Motta or with
regard to his unauthorized
use of the symbols, name
and representations of the
Ordo Templi Orientis.
"If Mr. Motta or his agents
are entering upon a path of
aggressive attack of
individuals or organizations
based upon such unauthorized
usages, we would find it [page 567]
necessary to reconsider our
silence."
MR. MacKENZIE: I would at this time ask that this be admitted, Your Honor.
Mr. Mittel has indicated an objection on the basis as a matter of hearsay.
THE COURT: May I see the document, please?
MR. MacKENZIE: It's offered only to establish that notice was given and confirms the earlier mailing, Your Honor.
THE COURT: Yes, I'll admit it for the limited purpose of showing the notice.
MR. MacKENZIE: As well as, Your Honor, for the purpose -- it refers to that earlier mailing to Mr. Motta.
THE WITNESS: Yes, of the giving of both notices.
MR. MacKENZIE: All right. I see.
Thank you.
(Plaintiffs' Exhibit No. 11 previously marked for identification was received into evidence.)
BY MR. MacKENZIE:
Q. Are you familiar with some or all of the bases by [page 568] which Mr. Motta claims to be a -- to have been granted rights by Mr. Germer?
A. I believe I am.
It has come up in the transcripts and things that I've been reading.
Q. Take a look, if you would, at Plaintiffs' Exhibit No. 55 and then 54.
A. Yes. I have both of them.
Q. What is 55?
A. 55 is a letter by Sascha Germer to Dr. Adjuvo {SIC sb. "Fr. Adjuvo" --pla}, A-d-j-u-v-o, I believe it is. That is the name of Marcelo Motta.
Q. And what does she write in the top ten or so lines that are underlined?
A. Do you want me to read that?
Q. Yes, please.
A. Again, please bear with me. It's a little cramped in style.
"Before I" --
I think that's "definitively," although it could be something similar.
--"send my petition to the
lawyer and the courts" --
Q. Now what is she talking about in that petition?
A. Oh, it's "deliberately" -- excuse me -- [page 569]
"Before I deliberately send
my petition to the lawyers
and the courts" --
Q. And what petition is she referring to; do you know?
A. Well, at this time it would most likely be the petition for probate of her husband's will.
Q. All right.
A. Continue with that?
Q. Yes, please.
A. "I want to make sure whether
a charter was sent to you on
April 20th, 1962" --
That's just 20/62 --
"is in your hands or not."
And that's difficult to read.
"It is this of which I refer
after Saturnus' death."
And the grammar is strange. She didn't say immediately.
No, I can't read that. It's --
Q. Um-hum.
A. -- difficult to make out.
But the next sentence:
"In this you have the right
to open a lodge and teach
up to the Third Degree" -- [page 570]
And that's atypically represented by an Arabic number 3 and degree sign.
Q. And not this type of a 3 (indicating); is that what you're saying --
A. Well, it would have been the usual --
Q. No, the Roman --
A. Not your -- it would have been Roman numerals, but --
Q. Okay.
A. -- I don't believe this lady would necessarily know that.
And she says:
"And included."
That's the end of the material.
Q. All right.
What I was going to ask was: Does receiving a Third Degree mean the recipient is a Third Degree?
A. Well, it's a bit difficult to make out what she meant here. If you're referring to this document, I'd have to do some talking to make that better.
Q. Well, let me -- let's take a look at Exhibit No. 54.
A. Yes, that's very clearly typed.
Q. That's a letter dated April 20th, 1962?
A. Yes. It is a letter by Karl Germer, and he's given [page 571] his mark of the OTO and he's also marked OTO at the top.
Q. Let me read the pertinent portions of this letter:
"I am prepared to give you a
charter for the lodge to work
only the first three degrees."
A. Yes.
Q. And then he talks about the important thing that
"You should have to fully
understand the meaning and
importance of these rituals" --
A. Um-hum.
Q. -- and so forth.
And right at the very bottom:
"Write me soon about these
points raised and if we are
clear, I will send you a
charter and whatever
documents you need such as
the first rituals."
A. Yes. It is to both -- the same as the other letter.
Q. How much later after this letter did Mr. Germer die?
A. You mean No. 54?
Q. Yes. [page 752]
A. This is dated April 20. He died in October of that same year.
Q. I see.
I'd like to show you Plaintiffs' Exhibit No. 57, which is entitled the Constitution of the Society Ordo Templi Orientis in America.
A. Yes.
Q. Are you familiar with that document?
A. Well, I read it through a couple of times with a certain amount of close observation.
Q. Let me ask you about something that appears on the fourth page of that document.
A. Yes.
I've got it.
Q. In Article 33 it states:
"hereby is designed as First
Supervisor General of the
Society, Brazilian citizen
Marcelo Ramos Motta with
proper limited warrant from
Frater Saturnus."
A. Yes. That would be Karl Germer, as it continues.
Q. Do you know if Mr. Motta ever got a charter -- or warrant, I should say?
A. Well, of my own direct knowledge, I don't know that [page 573] he ever had one, but if the last two pieces of evidence -- I don't know whether -- if I'm permitted to comment on that or not.
Q. Well, based on what you have seen in these last two pieces of evidence, what is you opinion?
A. Well, if you just based in on those, that's absolute evidence from Sascha Germer's view that he did not have one.
Q. Based on the April 20th letter?
A. Sascha says that that particular letter of April 20th from Karl Germer was a charter, you look at it and it's definitely not one.
Q. Do you believe that Sascha was mistaken in writing that letter?
A. I believe she was. I believe she failed to recognize it or she might have been a little bit more complicated in her reasoning than that.
I could go on in that direction if you like.
Q. No, that's fine. Thank you.
MR. MacKENZIE: Your Honor, the next exhibit I was going to introduce, which is No. 59, which are certain pages that we have extracted from Mr. Motta's latest book "Magick Without Tears." And essentially what it is, it just continues various libelous attacks on --
THE COURT: Is there any objection to the [page 574] admission of the volume or to the exhibit?
MR. MITTEL: Which is Exhibit 59?
THE COURT: 59.
MR. MITTEL: Well, all I can say, Your Honor, is we're going to submit the entire book. I don't see any reason to introduce the excerpt which is --
MR. MacKENZIE: Well, that's fine then, if you'll just -- my point is, Your Honor, there is --
THE COURT: Well, how are you going to direct my attention to the alleged defamatory statements?
MR. MacKENZIE: Well, why don't we --
THE COURT: Certainly it's above and beyond the call of duty for me to read the entire book myself, to separate, to take out the libel.
MR. MacKENZIE: It would help to read it, Your Honor. My thought was this: There's so much libel in this book, I didn't want to have the Court --
MR. MITTEL: Well, let me say something else about that matter. This -- the alleged libels in this book are nowhere identified in the Complaint. This book was not published, I don't think -- Mr. Motta may correct me -- until sometime in the last year.
And so to the extent that there may or may [page 575] not be libels in there, they're not mentioned in this Complaint, and it's irrelevant.
THE COURT: ell, that is a legal issue.
MR. MacKENZIE: Well, Your Honor, --
MR. MITTEL: We're certainly not agreeing under Rule 15A, B or C, whatever -- I never can remember which it is -- that's at issue. That's being tried by consent.
THE COURT: All right.
MR. MacKENZIE: My point is simply, Your Honor, that the libel has been ongoing. And to give you some proof of that, both because it's ongoing and because I think it shows --
THE COURT: All right.
MR. MacKENZIE: -- Mr. Motta's --
THE COURT: Now, Exhibit 59 is from the --
MR. MacKENZIE: The "Magick Without Tears."
THE COURT: -- from the book --
MR. MacKENZIE: Well, Mr. Motta's version of "Magick --
THE COURT: Exhibit 59 is plaintiffs' alleged libel from that book; right?
MR. MacKENZIE: Yes.
THE COURT: And defendants' position is [page 576] it is not encompassed in the Compliant.
Plaintiffs say it is a continuing a libel.
Okay.
I am not prepared to rule on it at this time. I'll give you a ruling on it later.
MR. MITTEL: I guess I should say one other thing; We've done no discovery on that at all.
THE COURT: Okay.
BY MR. MacKENZIE:
Q. I'd like to give you Mr. Motta's version of "Magick Without Tears."
A. Okay I have it.
MR. MacKENZIE: Drawing Your Honor's attention to the cover page which, as the author, lists Aleister Crowley along with Marcelo Motta.
And I think when you hear the comments we're going to be reading, there's no way that Aleister Crowley's name should be put on this book.
BY MR. MacKENZIE:
Q. Mr. Heidrick, if you would -- well, let's tale a look at page XVII, 17.
A. Okay. That's the one marked editorial with a statement, "Certificate of Renewal"?
Q. Yes, that's the one.
MR. MacKENZIE: I'd just like to draw the [page 577] Court's attention that that is Mr. Motta's registration of that book and the effrontery to publish that.
THE COURT: Yes.
BY MR. MacKENZIE:
Q. Mr. Heidrick, would -- well, why don't I just read this? I think that may go a little quicker.
Turning to page XXII --
MR. MITTEL: Your Honor, may I make a suggestion?
Mr. MacKenzie wants to direct the Court's attention to certain portions of this book after it's been introduced and marked in its entirety. He can do that by leaving the page numbers up here --
THE COURT: Yes. Why don't you just hand them up to me?
MR. MacKENZIE: That will be fine. I'd just give you what Mr. Heidrick has, the entire set, and just mention to you -- well, they're all highlighted, Your Honor.
THE COURT: They're all marked?
MR. MacKENZIE: Yes, just the --
THE COURT: All right.
Then let the record show that I'm taking Plaintiffs' Exhibit 59, which has yellow marking on it, not as evidence but as plaintiffs' claim of libel, [page 578] publication of libel.
MR. MacKENZIE: Yes, Your Honor.
THE COURT: And I'm taking under submission the entire issue of whether these later published works can be the subject of a libel claim in this action.
Mr. MacKenzie, I think we'll take a recess at this time. I have a short meeting with the United States Marshall.
MR. MacKENZIE: Yes, Your Honor.
THE COURT: I should be only five or ten minutes.
MR. MacKENZIE: Fine, thank you.
I'm nearing the end of this.
You can step down.
(Brief recess taken.)
THE COURT: Are you ready?
MR. MacKENZIE: Yes.
BY MR. MacKENZIE:
Q. I'd like to show you Plaintiffs' Exhibit No. 65 and ask you if you would identify that for me?
A. Yes. This is a photocopy of the material sent to me by Roger Kett {SIC sb. "Lon Milo DuQuette" -pla}, a Lodge Master down in Southern California.
Q. Is that the SOTO version of the vesica you [page 579] previously described?
A. Making allowances for the photocopy, yes.
Q. Who is Alfred Steffens, Jr.?
A. I have no immediate knowledge of him I understand from reading some of the published materials surrounding this case that he is or was some affiliate of Mr. Motta's. And, or course, this letter is on their letterhead.
Q. Okay.
MR. MacKENZIE: I would just read into evidence, Your Honor, it says:
"All requests to join the OTO
in California are made to me
with a Nashville, Tennessee
address, at least Thelema
Publishing and SOTO letter."
BY MR. MacKENZIE:
Q. I'd like to show you Plaintiffs' Exhibit No. 71.
A. Okay.
I have it.
Q. And what is that?
A. That is a letter dated August 2nd, 1957 from Karl Germer to Marcello. That would be Marcelo Motta.
Q. Mr. Heidrick, do you know the date around which Mr. Motta claimed to have been initiated by Karl Germer? [page 580]
A. I know that date roughly from two sources.
Q. What date is that?
A. It -- from one source the earliest would have been December 13th, 1956.
And from his published writing it was sometime immediately or thereafter that he claimed initiation.
Q. In 1956?
A. Yes. December of '56, I believe.
It was December of '56, in fact.
Q. Would you read the portion I've underlined, which is about two-thirds of the way down in the paragraph beginning "July 30"?
A. Starting with "Your ideas"?
Q. The portion I've underlined.
A. Yes.
"Your ideas are credibly quite
good as far as they go, but you
or A.C. have no idea whatever
is the relevant difference
between the OTO and the A.'.A.'..
Better that it remain so." {SIC sb. "Your ideas are possibly quite good as far as they go. But you or c. have no idea whatever of the real difference between the OTO and the A.'.A.'.. Better that it remain so." --pla}
Q. Well, is there a difference between the OTO and the A.'.A.'.?
A. Better ask if there's a similarity. [page 581]
There's hardly anything in common between the two things except an affinity for mysticism and Thelema and Crowley's writing. That's all.
Q. Thank you.
MR. MacKENZIE: I am not sure if Sascha Germer's death certificate has yet been entered, Your Honor.
If not, I'd like to do so at this time as Exhibit 119 as her --
THE COURT: That is already in evidence.
MR. MacKENZIE: If it is, that's fine.
MR. MITTEL: There is no objection.
BY MR. MacKENZIE:
Q. I'd like to show you Plaintiffs' Exhibit No. 121.
A. Yes. That's it; right.
Q. Do you recognize that letter?
A. I certainly do.
It's from M. R. Motta, an abbreviated signature there, dated October 26, 1982. And it's to Peter Straub.
Q. Who is Peter Straub.
A. He is the author of a best-selling book called "Ghost Story".
Q. And --
A. That's mentioned also in this letter. [page 582]
Q. And was the OTO involved with Mr. Straub?
A. To the tune of about $20,000 libel settlement, yes, sir.
Q. Would you explain the facts of that, briefly?
MR. MITTEL: Objection, irrelevant.
THE COURT: Wait a minute.
What is the relevance?
MR. MacKENZIE: Well, the relevance, Your Honor, is in the portion that I've underlined here, which comes up in the second full paragraph it's:
"In short, sir, you have been
victimized by confidence men."
That's Mr. Motta addressing Mr. Straub and referring to that $20,000 libel settlement.
THE COURT: Well, I'll admit it for the purpose of showing the confusion between the two organizations.
MR. MacKENZIE: Well, --
THE COURT: And also on the question of whether it's a publication of libel that will have to depend upon my ruling a little later or to whether the publications occurring after the date of filing the Complaint can be included.
MR. MacKENZIE: Yes, Your Honor.
May Mr. Heidrick explain the background of [page 583] that libel suit?
THE COURT: Yes.
THE WITNESS: All right. Mr. Straub had written a book, essentially a fictional account -- it became a movie later, so it was quite popular, Book Club selection and that sort of thing.
And in it he used the name "OTO" and referred to the OTO with headquarters in Berkeley, which is plaintiffs' location or headquarters.
And he said that we were implicated in a series of felonies, murders, and so forth, that furthers his story.
And we took exception to this and reached the settlement after having the case brought.
The settlement was $20,000.
BY MR. MacKENZIE:
Q. Thank you. Let me ask you if you don't -- do you feel there was anything improper in either the bringing of the lawsuit --
A. The lawsuit was absolutely proper. Even if there were million OTOs, there was only centered {SIC sb. "only one centered" --pla} in Berkeley.
Q. Thank you.
I'd like to show you Plaintiffs' Exhibit No. 129 and ask if you would identify that for me? [page 584]
A. All right. This is a letter from Gerald Yorke. It is sent to "Dear Starr."
And upside down on the last page there was an "M. P. Starr," and a date stamp of January 24th, and what appears to be 1981. It's hard to see exactly what year. No date on the letter at the head.
Q. The very top, the very first sentence of the bottom-most paragraph on page 1.
A. Yes.
Q. Would you read that aloud, and I'd like to have your opinion about that.
A. Okay. It says:
"OTO from 1928 to his death,
one did not have to be in the
OTO to be allowed to read and
copy the OTO material."
And that's the underlined extent of it.
Is that as much as you want?
Q. Yes. What is you interpretation of that sentence?
A. Well, it's unpleasant, but it's simply that the OTO material was not reserved exclusively for OTO members.
And, in fact, I had some knowledge about Mr. Yorke.
Q. Well, I think we would -- yes, all right.
Go ahead. [page 585]
A. Mr. Yorke was the major collector of Crowley manuscripts and did, in fact, possess the necessary rituals although he was --
Q. Was not --
A. -- not a member.
And those apparently came from the hands of Crowley. And possibly, although I do not know, they could have come from other hands as well.
Q. So, are you saying it's possible that someone who is not an OTO member could be familiar with OTO rituals?
A. Mr. Yorke says so. And there had been occasions -- that I have read statements by Germer that say so.
Q. All right. Thank you.
MR. MITTEL: Objection ; more to strike the remarks about Mr. Germer, that he's read, unless there is a document, based on the Best Evidence Rule.
THE COURT: It may be stricken.
BY MR. MacKENZIE:
Q. I show you Plaintiffs' 135 and ask if you would identify that document.
A. Um-hum. It's signed with the mark of Frater Saturnus, which is the symbol used by Karl Germer.
Q. And who is it addressed to?
A. Frater Adjuvo.
And this is one the the names of Marcelo [page 586] Motta.
Q. And how soon before his death did he send this letter?
A. Oh, this is December 23rd, 1961, less than a year from his death, Karl Germer's death.
MR. MacKENZIE: I'd like to read a portion of that, Your Honor.
"You blithering, miserable
idiot. I've seen and hat to
observe several similar
cases of demonitis, including
my own, but yours beats all
records in our files. I saw
the demon creeping up months
ago. You have to be left
alone until you either slay
the demon once and for all
or be devoured by it."
BY MR. MacKENZIE:
Q. Do you have any idea what the Crowley library might be worth?
A. Oh, it's -- that all depends on what exactly you're referring to.
Could you specify a little more precisely what point in time? [page 587]
Q. Well, it -- I suppose at this point in time.
A. Well, at this point in time the whereabouts of most of it would not be known.
What we have, I would say, would be worth somewhere between, oh, ten and twenty thousand dollars, just a -- loose materials that were recovered lately and seem to be from that source and some that Grady reserved out of it.
To me, if you mean the whole collection, according to accounts, it originally weighted some two and a half tons. And these were mostly collectible items, and the sky is almost literally the limit.
Single letters were going for as high as $5,000, and there were tens of thousands of such letters.
Of course, there would knock the price down considerably.
Q. where is the majority of the Crowley material kept?
A. You mean that portion which still is in the OTO hands?
A. No, just in general.
A. Well, it's divided among a number of collections throughout the world.
The largest collection the one originally held by Gerald Yorke, and that is in the Warberg [page 588] Institute at the University of London in England.
Q. Thank you.
MR. MacKENZIE: No further questions.
Thank you.
CROSS-EXAMINATION
BY MR. MITTEL:
Q. Good afternoon, Mr. Heidrick.
MR. MITTEL: We're going to four o'clock, Your Honor, did you say?
THE COURT: Yes, approximately four o'clock. I do have a problem with another jury that I'm assisting Judge Fargher with.
MR. MITTEL: And the we're going to have a moment to discuss you bench rulings of this morning?
THE COURT: Yes.
BY MR. MITTEL:
Q. Mr. Heidrick, do you remember when Mr. Motta's "Equinox" Volume V, No. 2 was published?
A. Very roughly. I would appreciate a little help with the year.
Q. Does the spring of 1979 sound about right?
A. Sounds reasonable.
Q. And it was right after that that you sent Plaintiffs' Exhibit 73 to him?
A. Well, it was sometime in '79. The date should be [page 589] on it.
Q. Plaintiffs' Exhibit 73 was prepared especially for Mr. Motta, was it not?
A. There were others, and we did that one for him.
Q. And in it you recognized at least that he was a Third Degree member of the Ordo Templi Orientis?
A. Based on what I knew at that time.
Q. Have you ever seen a document similar to Plaintiffs' Exhibit 73 prepared by Karl Germer?
A. Could you show me that exhibit?
I know I put a lot of these numbers on, but following them is something else.
All right, sir.
Now, you've asked me if I've ever seen a similar document by Karl Germer?
Q. Yes.
A. In effect, yes.
Q. Did you produce it in this case?
A. We produced three of them.
Q. You produced three of them.
Can you tell me what their numbers are, please?
A. I believe Mr. MacKenzie can do that.
Those are the oaths of 1943 for Mellinger, McMurtry and one other -- Smith -- would be Talbott [page 590] Smith.
Q. You're suggesting that Plaintiffs' Exhibit 22 --
A. If that's what that is, yes.
Q. -- is similar to Plaintiffs' Exhibit 73?
A. In effect, it's virtually the same kind of thing.
Q. Now, actually isn't Plaintiffs' Exhibit 22 a letter from Grady McMurtry to Karl Germer saying --
A. That is a letter in answer to the form.
Q. Have you --
THE COURT: What is that? I'm sorry, I didn't hear your answer.
THE WITNESS: That letter is an answer to the form.
BY MR. MITTEL:
Q. Have you ever seen the form?
A. If you'll keep track of it, I think it was Talbott Smith right up there.
That's it, Talbott Smith.
Q. That's it, Plaintiffs' Exhibit unmarked?
A. No, it's the same exhibit. There are three specimens of it. That happens to be the second one.
Q. Do you -- this was sent to members of the Agape Lodge; is that right?
A. Well, I don't know exactly the status of one or two, because Mr. McMurtry was traveling in Europe and [page 591] was with Crowley on or about that time.
Q. But he was initiated into the Agape Lodge in 1941?
A. He certainly was.
Q. And the other recipients were also members of the Agape Lodge; is that right?
A. One was a Master and one was an initiate of that group, yes.
Q. And it was Agape Lodge about which Mr. Crowley had been so concerned; is that right?
A. Not at that time so much as it was some events around the Lodge and one or two particular members.
Q. And, in fact, it was soon after the document we just looked at the Mr. McMurtry was authorized to investigate Agape Lodge?
A. I believe they were connected.
Q. Is there anything in the "Blue Equinox" or any other governing documents of the Ordo Templi Orientis that require members to reaffirm their allegiance?
A. Well, just the general fact that the Outer Head of the Order can order practically anything and that policies, once established by such orders, remain in force.
Q. Does it state anywhere in the Constitution that the Outer Head can order anything?
A. It says in substance, I believe, that is largely [page 592] included in the statement I was asked to read from that source.
Q. That statement referred to emergencies, did it not?
A. And that, I believe, was an emergency.
Q. There was an emergency pending in 1979 when you wrote to Mr. Motta?
A. Absolutely.
Q. And was the emergency the publication of "Equinox" V, No. 2?
A. No, that merely assured that we -- we knew we sent the letter to Mr. Motta.
The emergency was etta {SIC sb. "later" -pla}.
Q. You testified that your copyright policy insofar as you may own the Aleister Crowley copyrights is that you want recognition and nothing else; is that right?
A. Well, recognition is worth an awful lot. It is the principal way we built up our membership in distant areas. It is important to us.
Q. And Samuel Weiser, Incorporated presently is publishing the "Holy Books of Thelema"; is that right?
A. Yes. In larger numbers of amounts like that, we'd like to get a little bit more in royalties and such.
Q. And that entity is paying royalties to your organization, it it not?
A. In a somewhat dysentery fashion, yes. [page 593]
Q. That's not uncommon for most publishers, is it?
A. That was my impression when we entered into the agreement.
Q. You said you have school knowledge of German. What did that mean?
A. Well, essentially I grew up in a high school where they only offered Latin, Spanish and French. So I sent away for a correspondence course.
Q. That's you knowledge of German?
A. That started it. And then I had two years of it in college, for a scientific major.
Q. Anything else.
A. Well, I've occasionally had correspondence, mainly I read and they wrote it.
My mother did not know English when she grew up in Northern California so I had a little German from the background there, not much Deutsch, not High German. That I had to learn.
Q. When you were talking about lost business as a result of the alleged confusion between the two marks --
A. Yes.
Q. -- the two organizations, you mentioned a store in New York.
What's the name of the store?
A. That would be the Magickal Childe, M-a-g-i-c-k-a-l [page 594] C-h-i-l-d-e, and Company, Incorporated.
Q. And that's the store about which the defendants complained to the New York City Department of Consumer affairs?
A. Yes, it is, indeed.
I don't believe we've been able to have a meeting there since.
Q. Do I understand that all you did there was have meetings?
A. No. It was a convenient place of gathering.
We also had our religious celebrations there from time to time and stuff, just a place where people go to meet one another, quite a bit of a social spot.
Q. And it's that loss of access that your complaining about?
A. Well, I can't in truth say it was only due to that, but it certainly has been an inconvenience. I think it's been recovered to some extent, some cost by the rental of another place.
Q. And then you mentioned somebody in the South Bay who I take it to be -- or which I take to be South San Francisco?
A. Probably around San Jose or on the other side of the Bay. I wouldn't specify the exact town, because it was just one case that came to my mind of several. [page 595]
Q. And what -- do I understand that he said he had --
A. Well, --
Q. -- reviewed the positions of both organizations and decided he didn't want to join each?
A. Well, he read some of Mr. Motta's material and he attended some of our meetings and some of my classes.
And he simply said that he would like to see which way it turned out before he would make any decisions regarding either organization.
Q. So he knew that you were west and Motta was east and there {SIC sb. "ne'er" -def} the twain should meet, so to speak?
A. Well, I think he didn't see where the twain was supposed to meet. That's his problem, and that's been the problem.
Q. And that's been the problem that most people that you're complaining have had?
A. Well, I'd say most of them, and a few others have done things where they got very upset about things we had nothing to do with.
Q. But most of them have been people who knew about both organizations and said --
A. Oh, I see you're -- see where you're coming.
Well, presumably if we can get a change to send them an answer to an inquiry we could educate them to that fact -- only includes material on the other [page 596] organizations, if they mentioned it in their inquiry letter. And that gives us a chance to present both sides, give them an address where they can learn about other things.
Q. You testified a little bit about the Peter Straub libel suit?
A. Yes.
Q. Do I recollect correctly that Mr. Straub had confused your organization with something called the Solar Lodge of the OTO?
A. We sort of figured that might have happened from the way the thing read in his book and from the way that section in the book -- of a book called "The Family" by Sanders came out.
Q. And then the Solar Lodge, described at least in this book "The Family" by Ed Sanders were some people who lived out in the desert east of Los Angeles?
A. I believe somewhere down that way.
No connection to us that I know. I've been told the direct opposite, in fact.
Q. I think you testified about a letter from Gerald Yorke to Martin Starr --
A. Yes.
Q. -- concerning the OTO rituals?
A. Yes. [page 597]
Q. There's been other testimony that those rituals were to be kept secret.
A. Yes.
Q. Are you saying that that testimony was in error?
A. Oh, no. Quite the contrary. I'm saying that these things were out in the lurch.
Q. The lurch is the same as a breech?
A. And you're the boss, you're the lurch. You can put them anywhere you want.
And Crowley was the boss; Germer was the boss. That's where the leaks generally occur.
Q. Mr. Yorke was a reliable, knowledgeable person about Crowley?
A. Of what he has in his hands, material objects, yes.
On his memory, zip, nothing.
I've read some rather strange comments by him in his letter {SIC sb. "letters" -pla}.
Q. So, if he has access to materials, then he can give you an accurate answer to a question?
A. If he has the materials, you can get a copy from the materials. He's dead now --
Q. Right.
A. -- according to the facts.
If he chooses to send them to you, his descriptions are often a little on the hazy side, if [page 598] they get into detail.
Q. Well, are you suggesting that because he didn't send material to Starr, but rather gave him an answer to a question that this answer in unreliable?
A. Oh, no. That's quite a general matter. He couldn't be that far out, because he's describing things apparently in his collection.
At least I've seen the list and have references, and he seemed to describe these things.
Q. So as long as he's talking about something that is generally --
A. If he's --
Q. -- within the ken of the OTO knowledge, then he's going to be accurate or was --
A. Probably knowledge, no.
If he's talking about an object, an item in his collection, he'll probably give it a superficial description which is quite accurate for figures and source.
But what it says -- he was a collector; he wasn't that much of a reader.
Q. I understand that, but he didn't have a collection of instances where the rituals had been given out, did he?
A. He had the rituals -- [page 599]
Q. Oh, so somehow --
A. -- not instances.
Q. So he knew somehow that the rituals had been given out by Crowley on other instances?
A. Well, I understand that he got them from Crowley, so that's how he got them. That's one instance.
Q. So he was a student of Crowley and a member of the OTO?
A. He was never a member of the OTO. Never.
A.'.A.'., yes.
OTO, no.
Q. Is there any other instance where he was able to discuss OTO matters and letters that you've seen where he was accurate or --
A. He loved to go on about it. And sometimes he was right, and sometimes he was wrong.
If he had an almost literal extract from some item before him, he probably was fairly reliable.
Q. So if you needed to know an answer to a question about the governing structure of the OTO, he'd be able to tell you?
A. Only form -- he could give you a paraphrase or a literal cut from the document, from its face.
If he described it, it would have to be assembled from the document or it would be subject to [page 600] his mind. And his mind was creative.
Q. If he needed to go to the Constitution or to the rights and privileges section of the "Blue Equinox" to find something out, he could do that?
A. If he said, "I've read it here," chances are he was being straight about it.
Q. And so when he said to Helen Parsons Smith in 1977 that this certificate stuff was nonsense, if he had a chance to read the Constitution and the rights and privileges portions of the "Blue Equinox" and similar documents, he'd be saying that was reliable?
A. Nonsense. That's utter nonsense.
Excuse me for being testy.
Q. The Caliphate --
A. Unless he had those papers in his hands, he wouldn't know anything about them. They were quite late, long after these documents were made available for his collection from Crowley.
These Caliphate papers were in the last and middle '40s, early '40s, at the best.
Q. What I'm saying to you is in that letter -- should I give you the letter to read, or are you familiar with --
A. I can recollect he substance, I believe, on this particular part. [page 601]
MR. MITTEL: This is Defendants' Exhibit 78, Your hOnor.
BY MR. MITTEL:
Q. What I'm suggesting to you, asking you is: If he had reference to the Constitution and other governing documents when he wrote that letter --
A. Um-hum.
Q. -- then we could trust his statement that that material doesn't appear anywhere else, it's meaningless in terms of OTO governments?
A. If you keep adding complexities to your questions, I can't answer it because I'm under oath. I have to have a single question, not a complicated question.
MR. MacKENZIE: I object; it's --
All right.
BY MR. MITTEL:
Q. Let me, first of all, ask you to assume that Mr. Yorke knew that Mr. Crowley was calling himself a Caliph --
A. I don't think I could assume that.
Q. -- in 1977.
You don't think he had been sent any of that material?
A. Well, that material was not mentioned in any list of York's material I've ever seen. I don't think he [page 602] ever saw it. That's not definitive.
Q. Why don't you take a look at Defendants' Exhibit 70-A just to refresh your recollection.
A. Glad to.
I see quite a bit of familiar material here.
Q. And so up there in the first part he talks about Mr. McMurtry's claim to be Caliph; is that right?
A. He says:
"Grady call himself a Caliph."
Q. And so he must have had access to some of the material to know that; is that right?
A. That doesn't follow him at all.
Grady wrote him letters.
Q. And when Grady wrote letters to people talking about his being Caliph, didn't he, at least the first or second time he wrote to them, always sent them his documents, copies --
A. There are instances in which whole decades went by with some correspondence without mentioning the documents.
Q. Anyway, Mr. Yorke knew that Mr. Crowley was calling himself the Caliph; is that right?
A. No, not Crowley.
Q. Did I misspeak? Did I say --
A. You said "Mr. McMurtry." {SIC sb. "Mr. McMurtry?" -weh} [page 603]
Q. So Mr. Yorke knew that Mr. McMurtry was calling himself the Caliph --
A. That's correct.
Q. -- when he wrote that letter?
A. It's -- the inferential, I think, is pretty clear.
Q. Oh, thank you.
Are you familiar with the application for tax exemption that the --
A. All too familiar, if you mean the general form.
Q. And are you familiar with the -- did you help to prepare that?
A. I think "help" isn't quite the word. I think I pretty well got that whole job.
Q. And do you remember the amount that you valued the Crowley-Germer library at in that application when you discussed the assets --
A. Well, I remember -- I remember the general assets of the copyrights I assessed at half a million, but I don't remember -- 50,000 or something less for the collection itself. It's rather specific --
Q. Fifty thousand?
A. Sounds about right for that, what I recollect of what we ended with. Technically that should be higher with this Whitmore find that's been added a few months ago. [page 604]
Q. Now, you've seen -- let me ask you a different question first. I'm sorry.
Your organization's authority, if you will, flows from Mr. McMurtry; is that right?
A. He's on the line whereby it proceeds to us from Crowley and from the precursor organizations down to Reuss on, Caliph.
Q. Does --
A. It does come through him, yes.
Q. Is there any authority or line of authority that extends through Karl Germer?
A. In several instances, Grady's does pass through Germer, letter by Germer accepting his credentials and the like.
Q. Those early letters in the 1950s?
A. Umm, I think '40s, late '40s, most of them.
And one as late as '59, I believe, though that's not as strong.
Q. But nothing along the lines of a letter saying:
"I appoint you my successor as
Outer Head of the Ordo Templi Orientis."
A. Nothing -- I think nothing along that line.
Q. And nothing along the lines of the letters that Mr. McMurtry has from mr. Crowley?
A. Well, he already had those. What do you need with [page 605] those?
Q. And there is nothing like that from Mr. Germer; is that correct?
A. As far as know, Mr. Germer never wrote such papers.
Q. Now, the letters of authorization from Mr. Crowley are tow in number; is that correct?
A. That depends on how you class them.
The primary charters, as I understand such things, when I file and study are two in number.
And then there's a modified rider, and there are papers that give plans and so forth. But to {SIC sb. "two" -weh} principal charters.
Q. And those are both dated sometime in 1946; is that correct?
A. I believe so. March and April.
Q. And one of them extends Mr. McMurtry's power throughout the State of California?
A. That is correct.
Q. And one of them extends Mr. McMurtry's power throughout the United States; is that right?
A. That's correct.
Q. And both of them limit his power in one way or another to some activity that Karl Germer may or may not undertake; is that right?
A. That's a little vague. I'm sorry, but what's [page 606] stated in there is much more precise.
Q. All right. On -- so Mr. McMurtry, by virtue of those documents, at best, has power in the United states?
A. Well, that's not simple.
Q. Well, let's just worry about what the documents say for a minute.
A. You are saying "at best," and that's a qualification that I don't think is the simple part of it.
Q. Well, one says in California --
A. At least. I would be happy to say "at least."
Would that be satisfactory?
Q. Well, no.
One limits him power to California; is that right?
A. No. One gives him power in California.
Q. And the other gives him power in the United States; is that right?
A. The other extends definitely that he has a power of what a wider territory, United States, yes.
Q. Does he have any documents of authority that give him power, say, in Canada?
A. Well, I would say that the national development of a clearly unlimited power in territory, it can grow. [page 607]
Q. And the same would go then for Asia?
A. If we had some initiation taking place that led to somebody properly chartered who was living in Asia, then whatever government existed there could recognize or not recognize the connection. It would be a legal or not --
Q. And you'd probably say the same about South America if I asked you; right?
A. Yes. In some places in South America you can do this and some places you can't.
Q. Even without any specific authorization from Germer or Crowley to act in South America?
A. To act there must be an authorization. And that authorization could be limited or unlimited in terms of its development.
There may be an injunction saying:
"You must not go beyond these
statements."
And there is no such in Grady's papers.
Q. Did you have any role in the selection of the title, I guess, of "In the Continuum" for the --
A. None whatever.
Q. Have you been responsible --
MR. MITTEL: Your Honor, that's a convenient place --
THE COURT: Okay. [page 608]
MR. MITTEL: -- to stop.
THE COURT: Okay. We'll adjourn now.
You may step down, Mr. Heidrick.
THE WITNESS: Thank you, Your Honor.
THE COURT: Counsel, do you want to talk about my rulings of this morning?
MR. MacKENZIE: I'm sorry?
THE COURT: Do you want to talk about my rulings of this morning?
MR. MacKENZIE: No, Your Honor. what that question was all about was that Mrs. Seckler had wanted clarification.
THE COURT: Very well.
MR. MITTEL: No, I had a question, part of which you answered, which was: We're not precluded from offering evidence that Mr. Motta is a member of the Ordo Templi Orientis?
THE COURT: You're correct. You're not precluded.
MR. MITTEL: You did, however, adopt the preclusive effect of the Maine decision, if I'm not mistaken, that there was no Ordo Templi Orientis capable of taking by devise the Crowley copyrights or administering them at least for some period?
THE COURT: Well, I'm following the [page 609] precise language of Judge Carter's writing.
MR. MITTEL: Right. Now let me follow that with what I guess is a logistical problem.
We, obviously, are going to offer proof that Mr. Motta is the outer Head of the Order.
To do this we have to assume that we will prevail upon appeal.
If we do, then I think I would prefer not to have to move to vacate your order that he's not, come back out here and put the proof on.
If Your Honor thinks it's appropriate, I can envision two different ways of proceeding.
One is with an offer of proof and one is with the actual proof --
THE COURT: I --
MR. MITTEL: -- subject to exclusion.
THE COURT: I was just going to say here I don't think either one is going to take very long in terms of proof, is it?
MR. MITTEL: No.
THE COURT: So I think I'll go ahead and hear both, either on the basis of admitting it subject to striking or an offer of proof. So we have a record.
MR. MITTEL: That's fine.
THE COURT: But as far as the issue is [610] concerned --
MR. MITTEL: We've lost?
THE COURT: -- you've lost.
MR. MITTEL: That I understand.
THE COURT: What do you have to say about concluding you case in chief?
MR. MacKENZIE: I have two or three questions for Mr. Heidrick. I was going to ask probably half a dozen of Mr. Motta.
I think the whole thing would take me a half an hour.
THE COURT: Okay.
When will you be ready to start your case in chief?
MR. MITTEL: I was going to be ready to start at 9:00 tomorrow morning.
THE COURT: That will be fine.
And let's figure on essentially the same hours as today, 9:00 to noon and 1:00 to 4:00.
MR. MITTEL: And then 1:30 on Friday?
THE COURT: Well, let's talk about Friday tomorrow.
MR. MITTEL: I have some subpoenas that are out being served returnable Friday at 1:30.
THE COURT: Oh, yes. Let me look at my [page 611] Friday calendar.
MR. MITTEL: I hope to be finished by the end of Friday.
THE COURT: So do I, because I have a trial I am supposed to begin Monday morning.
On Friday I have a very short criminal calendar at 1:30, but you can have most of Friday, all Friday.
MR. MacKENZIE: All of Friday afternoon.
THE COURT: Yes. Yes, except for a very short criminal hearing at 1:30.
All right. Then we will adjourn until nine o'clock tomorrow morning.
(Proceedings adjourned at four o'clock)
[page 612] --- this page is used in the Transcript for the certification by the Court Reporter. In as much as this is not a legally certifiable electronic document, the page shall remain blank to signify that this particular version is for research and not for legal representations.
---- Transcribed from the record with notes by William E. Heidrick, Grand Treasurer General, Ordo Templi Orientis.
[page 613]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE CHARLES A. LEGGE, JUDGE
Grady McMurtry, William E. Heidrick, Phyllis Seckler, Helen Parsons Smith, William Breeze, Francis I. Regardie, James Wasserman, and Kenneth Anger, individuals, Ordo Templi Orientis, a corporation, and Thelema Publications, a business entity,
Plaintiffs,
vs.
Society Ordo Templi Orientis, a corporation, Thelema Publishing Company, a corporation, Marcelo Ramos Motta, an individual, and Does I through X, inclusive,
Defendants.
CIVIL NO. C-83-5434
VOLUME IV
PAGES 613 - 783
Morning Session
REPORTER'S TRANSCRIPT OF PROCEEDINGS OF COURT TRIAL
Thursday, May 16, 1985
450 Golden Gate Avenue
San Francisco, CAlifornia 94102
REPORTED BY:
James Tankersley
[page 614]
APPEARANCES:
FOR THE PLAINTIFFS:
Stuart I. MacKenzie, Esquire
80 Swan Way, Suite 301
Oakland, California 94621
FOR THE DEFENDANTS:
Law Offices of Mittel & Hefferan
By: Robert Edmon Mittel, Esquire
5 Milk St.
P.O.Box 427
Portland, Maine 04112
[page 615]
INDEX
VOLUME IV - Fourth Day
Opening Statement on Behalf of the Defendants - Page 659
Examinations:
Witness: Direct Cross Redirect Recross
William Heidrick 616 618
Marcelo Ramos Motta
(called by plaintiffs) 633 648 650 653
Marcelo Ramos Motta
(called by defendants) 663
resumed 703
Defendants' Exhibits: For_Ident. In_Evidence
1-A One of two governing 664
documents.
E Book. 666
F Equinox 5, No. 3 667
G Equinox 5, No. 4 668
H "Magick and Mysticism." 669
I Book. 669
J "Magick Without Tears, 670
Unexpurgated."
K Preface page of a book. 671
42-A Letter dated 12-25-61. 707
43-A Letter written 7-15-63. 709
48 Letter dated October 12, 1962. 724
49 Letter dated October 30, 1962. 727
51 Letter dated January 26, 1963. 728
77 Printed Constitution. 746
9 Letter from Aleister Crowley. 747
20-A Letter dated April 27, 1953. 760
53-A Letter from Mrs. Germer to 776
Mr. Motta.
53-B Letter from Mr. Yorke to 777
Mrs. Germer.
[page 616]
Thursday, May 16, 1985 9:00 a.m.
FOURTH DAY - MORNING SESSION
THE COURT: Are we ready to proceed with this matter?
MR. MITTEL: I am, Your Honor.
THE COURT: Mr. Heidrick, will you take the stand, please.
Mr. Heidrick, if you recall, you're still under oath from Yesterday.
WILLIAM HEIDRICK,
having been previously sworn, resumed the stand and testified further as follows:
CROSS EXAMINATION
BY MR. MITTEL:
Q. Mr. Heidrick, you remember yesterday there was some discussion about Plaintiffs' Exhibit 125.
A. Yes, I remember that.
Q. That's the letter from Gerald Yorke to Sascha Germer?
A. That's correct.
Q. Now, you were talking about Mr. Yorke's reliability in terms of what he was writing about?
A. In certain limits, yes. [page 617]
Q. Do you remember what your testimony was?
A. Substantially.
Q. Why don't you tell us again if you would, please?
A. Well, it was my understanding from studying the records from various sources that Mr. Yorke wasn't {SIC sb. "was" -pla} quite reliable when the document was before him with regard to the physical condition of his collection.
Plus he relayed the description of the documents without quoting them. Of his memory -- it was quite faulty.
Q. Thank you.
Do you know if he had any of the manuscripts to which he was referring in front of him when he wrote the letter?
A. Well, I wouldn't know, not being in the room.
Q. Yet, you believe that's a correct statement of the facts?
A. He was very concise about what he physically had, whether present or not; it was the content that gave him trouble.
Q. You don't mean by that that he didn't know what the contents were. You mean that he sometimes made mistakes in interpreting the contents?
A. Well, the problem is: You've got hundreds of [page 618] papers and you have to know what each paper is, an identity.
But by the time that a year or so has gone by, you may not have figured out what paper contains exactly what.
MR. MITTEL: I have no further questions, Your Honor.
THE COURT: Do you have any redirect, Counsel?
MR. MITTEL: Well, Your Honor, I was just mentioning to Mr. MacKenzie, and due to my own oversight, there was one area that I neglected to bring up in my direct examination. And that was that issue of libel.
And if I could just indulge in that and allow Mr. MacKenzie to cross examine on that portion of it? {SIC in this statement, the names of counsel should probably be reversed: statement by MacKenzie, mentions Mittel twice -weh}
THE COURT: Yes.
MR. MITTEL: On my objection, Your Honor.
REDIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Mr. Heidrick, were you aware that Mr. Motta had said something, certain things, before about you in print?
A. Yes, I am. [page 619]
Q. He says, states, quote.
"William E. Heidrick claims
to represent the OTO" --
MR. MITTEL: Objection, Your Honor.
It's my understanding that your ruling of yesterday eliminated from the case those two claims because they are religious matters. Claiming to represent the OTO certainly falls within the scope of --
THE COURT: I agree. That would be my ultimate ruling when I come and make decisions here.
However, for purposes of evidence, it sometimes is kind of hard to distinguish between those things that fall under the religious sphere and those that fall under the secular, et cetera, et cetera.
So I'll hear the testimony, but my decision will still be the same; that is, any matters dealing with religious matters are protected by the First Amendment.
BY MR. MacKENZIE:
Q. It refers to you as "dupe"?
A. It does.
Q. Let me ask you what you interpret that to mean?
A. Well, I interpret it to mean --
MR. MITTEL: Objection or relevance, [page 620] what he interprets the word "dupe" to mean.
THE COURT: He can testify what his understanding of it was when he read it.
THE WITNESS: I interpreted it to mean that I was of less than competent intelligence to deal with Mr. McMurtry.
And I find this very offensive.
BY MR. MacKENZIE:
Q. He makes certain claims about Mr. McMurtry including the Sascha Germer malnutrition claims?
A. Yes, I know that claim. Statements against Mr. McMurtry then become statements against me in terms of my intelligence.
Q. I'd like to show you --
MR. MacKENZIE: I'm at a loss as to the number, Your Honor. It's one of our exhibits, and it's attached to the anticipated First Amended Complaint as Exhibit B. And if we could proceed on that?
THE COURT: Yes, well, do you want to just use the copy from the Complaint?
I have it. A letter from Mr. Motta to Mr. Heidrick dated March 17, 1981.
BY MR. MacKENZIE:
Q. did you receive this letter?
A. I did after at least one or two other people had [page 621] received it and noticed that it should have come to me.
MR. MITTEL: Objection, hearsay.
THE COURT: Well, who was the source of his last statement?
THE WITNESS: I was. I was sent a copy of this letter from a friend before I received it.
THE COURT: All right.
BY MR. MacKENZIE:
Q. Would you please read for the record to the Court paragraph No. 2 at the bottom?
A. It states, quote:
"I do not recognize Mr. McMurtry's
rights as a human being even as a
human being. He allowed Mrs. Sascha
Germer to die slowly of malnutrition
just so he could get his hands on that
material that he is not qualified
to handle, directly, morally or
spiritually.
"Furthermore, he was married to the
woman who was originally accused by
Mrs. Germer of having been
instrumental in robbing her."
Q. Fine, thank you. [page 622]
What was your reaction to the, your own personal reaction, to the claims or the statements that Mr. Motta directed towards you?
A. Well, I found them offensive and I found that I was -- well, just certainly appalled that this would be the answer in part to the letter that I expected him to answer years ago.
Q. Do you feel there was any justification for his statement?
A. The only justification is that he wanted to get a rise out of people. I would think that, no other.
Q. Thank you.
MR. MacKENZIE: Your Honor, there's one other matter that has not be gotten into and it was brought out by Mr. Mittel's cross examination of Mrs. Seckler and in which indicates there were two boxes that contained various articles and were later sold.
Mr. Heidrick had bought the books from someone.
And I would like him to retestify on that point.
THE COURT: Yes, you may do so.
MR. MacKENZIE: We have marked this No. 201
THE COURT: You already have a 201.
MR. MacKENZIE: 202? [page 623]
THE COURT: Yes.
BY MR. MacKENZIE:
Q. I'd like to show you this Exhibit 202, Mr. Heidrick.
Do you recognize that?
A. This is a copy of the unbound, uncut edition of "Equinox of the Gods" which I purchased from Rory Root.
And the canceled check that I paid $50.00 for that, April or '78, is included.
Q. Just so we understand, there's a second page to Exhibit 202, is that the cover page?
A. That's the wrapper. It's not actually the cover, but the container of the uncut, unbound sheets.
Q. How do you know that this is of the same material that came from Calaveras?
A. Rory Root stated to me that was the truth.
MR. MITTEL: Objection.
THE COURT: Well, I think it's foundational.
Is there a dispute?
MR. MITTEL: Well, I think there may be. I don't know. I've never ween this exhibit before. I certainly would want to look at it, and my clients.
THE COURT: Then I'll hear the testimony [page 624] subject to the motion to strike.
BY MR. MacKENZIE:
Q. Could you explain the circumstances surrounding how you came to meet Mr. Root and purchase this book?
A. Very well. This goes back to possibly late 1977. And for the record, Rory Root, R-o-r-y, R-o-o-t.
Now, we were just getting organized as far as the OTO initiations in Berkeley were concerned. And we'd been going less than a year at that location.
And there was a number of people dropping in. Mr. Root was in his early 20s, and he remarked to me and to others that he grew up in Calaveras County in the neighborhood of the Germers in the West Point area.
He further told us that after Mrs. Germer died, their house and some associated papers that had been left there were purchased by either his family or close affiliates of his family.
He finally said that that his family was related to the local sheriff or constable. And I don't know what effect that may have, but that's what he said.
And then he said that there were some boxes. I believe I could say with certainty at this time that he said "two" that contained mostly canceled checks and stuff from the Germers. [page 625]
He said that his family didn't want to let them go. But he said he had this edition, unfolded, or rather in this state. And he had taken two and he had wanted to sell them.
So I thought, "Well, now, this guy said he's related to the local authorities and his family bought that property. So we don't probably have too strong a claim on the property as it is."
So all I could do is buy the book and that's what I did.
I have heard since then that he's a regular visitor or patron of the Whitmore place of business.
Q. What kind of a business is that?
A. It's mostly book sales; mostly paperbacks and things used and the like.
Q. Occult type?
A. Just about anything. There's a lot of fantasy books.
Q. That's fine, thank you.
MR. MacKENZIE: That's all I wanted to introduce.
Thank you, Your Honor.
MR. MITTEL: I have a few questions on redirect.
THE COURT: Okay. Go ahead. [page 626]
MR. MITTEL: Thank you.
REDIRECT EXAMINATION {SIC sb. "RECROSS EXAMINATION" -def}
BY MR. MITTEL:
Q. Mr. Heidrick, I'd like to show you again Plaintiff's Exhibit 73 and in it you are asked as to the reference --
Well, let me -- that's a letter sent to Mr. Mittel {SIC sb. "Mr. Motta" -def}; is that correct?
A. That's correct.
Q. Mr. Mittel {SIC sb. "Mr. MacKenzie" -def} had asked you if you referred to Mr. Motta as a Third Degree in that letter?
A. And I said, yes.
Q. How is it that you referred to him as the Third Degree then and you don't claim him as a member or any rights at this time?
A. Well, to answer that probably I have to describe a bit to you how we handled our membership at that time.
Q. Yes, please.
A. Okay. Certainly we had a problem, what Phyllis still has.
We didn't have a direct access to, and that was the bulk of archives, that actually did disappear a bit earlier than that.
I was looking for some sort of clear statement [page 627] such as the grade he had by his initiation, and I couldn't find anything like that.
I looked through and couldn't find the statement in either letter to him or from him regarding any degree that he possessed.
So in the process, one of my calls to Ms. Seckler, to try to get access to what she had, I asked her if she had seen such a letter.
At that time she told me she remembered seeing that letter in the archives, records that she still had, in which Mr. Motta was writing to someone, either Sascha or Karl Germer and asking for evidence of his Third Degree. This is as far as I could get in seeking out his degree.
I have since asked her about this and she has not been able to confirm it. And that certainly is where this statement comes from.
Q. Had you, yourself, seen any proof of Mr. Motta's initiation as far as rank?
A. Not with my eyes. But I would have to go to the statements that I had at that time of Miss Seckler that she had in fact seen such. And I would have to support her statement to the extent she had, herself. She had repeated it to me when I asked her for it.
Q. Did she ever give you such a letter? [page 628]
A. I've never seen such a letter.
Q. One other point. You were asked about letters that you received?
A. Yes.
Q. And that the OTO has received?
A. Yes.
Q. About how many such letters did you receive?
MR. MacKENZIE: Objection.
THE COURT: He can testify as to how many letters he's got.
THE WITNESS: There's been quite a change over the years, number of these letters arriving.
I'd say in the last year or so, we probably have gotten one out of ten inquiries and approximately 30 a month. And the one out of ten per month makes reference to Mr. Motta directly or indirectly.
Before that time there was a period where roughly one in 55 or one in 40 per month mentions confusion or asks questions about Mr. Motta's claims.
And again this seems to -- this is difficult to be accurate about.
Q. How did you respond to these letters of confusion?
A. By normal letter.
MR. MacKENZIE: Objection to the form of he question. [page 629]
BY MR. MITTEL:
Q. How did you respond to such letters?
A. By block form letter giving Mr. Motta's Nashville address as an alternative way of finding out information.
Q. This is a form that comes out of your computer?
A. It is.
MR. MITTEL: No further questions.
THE COURT: Do you have any recross?
MR. MacKENZIE: I do, Your Honor.
First let me move to strike the testimony about what Mr. Root said and about what Mr. Whitmore said.
THE COURT: That testimony is hearsay.
MR. MacKENZIE: So if I understand your ruling, all that we have on the record now is that fact that Mr. Heidrick purchased an edition of the "Equinox of the Gods" from somebody named Rory Root in 1977.
BY MR. MacKENZIE:
Q. You testified again about Plaintiffs' Exhibit 73?
A. That was my letter to Mr. Motta?
Q. That's correct.
How often did you go through the process of determining who should bet a letter and who might be a member and who might not? [page 630]
A. Well, essentially it was usually easier to get information because I was simply asked {SIC sb. "I simply asked" -pla}, "Do you know if so and so is in fact a member to a particular degree and someone that knew them well was available. Or were there letters and that sort of thing that were available."
And in Mr. Motta's case, the alumnus course {SIC sb. "accumulated correspondence" -pla} hadn't all made it to my attention. So I could not really figure it out too well.
Q. And as I understand you couldn't succeed then doing that then what you just described, then {SIC sentence garbled -weh}?
A. I had to go to Mr. McMurtry.
Q. How much did he have?
A. Oh, dear, as memory serves, it would be about an inch of paper.
Q. That was a full compilation of what he had?
A. On Mr. Motta's correspondence.
Q. You testified about Plaintiffs' Exhibit 67.
A. Could you refresh me as to identity?
Q. That's the letter to you from Mr. Motta talking about how Mr. McMurtry had no rights.
A. That I remember.
Q. You received a copy of that letter from someone before you received your own?
A. That's correct. [page 631]
Q. Do you remember from whom you got the copy?
A. Mr. Diekler {SIC sb. "Deitler" -pla}.
Q. You talked about this statement of Mr. Motta's about you?
A. Yes.
Q. Possibly a dupe of McMurtry?
A. That's right.
Q. Isn't it possible that I'm a dupe of McMurtry?
A. I wouldn't know in what capacity.
Q. But it's possible.
A. It's certainly not my business.
Q. But you will agree with me that the word's possibly not a direct accusation that you are a dupe?
A. I can't say what he meant by that or how it would be read by the average reader.
Q. I wasn't clear about one thing. I said: Are you bothered because of the word "dupe" --
A. I'm bothered.
Q. Let me ask the question: Are you bothered because you think it means that you did what Mr. McMurtry did because you're a dupe, or are you bothered because it might mean you're less intelligent because of you associating with him?
A. I'm bothered because it seems to declare to the world at large that I was a total imbecile for [page 632] abandoning my career to serve Mr. McMurtry's ends.
I have devoted essentially the balance of my life from 1977 to this purpose. And it's very trying.
Q. What did you do before 1977?
A. Well, before 1977, I was on a sabbatical for a few years. Before that I had a Master of Science Degree in Physics.
And one of the reasons for the sabbatical I took for myself is that I had a chance on graduation with that degree of conducting tours to the Exploratorium or working on the H-Bomb in Livermore.
And I felt that a certain time off might improve my employment situation. So I took it.
MR. MacKENZIE: One moment, Your Honor.
THE COURT: Yes.
MR. MacKENZIE: I have nothing more on recross, Your Honor.
THE COURT: Okay. You may step down, Mr. Heidrick.
Thank you, very much.
THE WITNESS: Thank you, Your Honor.
MR. MacKENZIE: I'd like to call Mr. Motta, Your Honor.
THE COURT: Mr. Motta, would you take the stand, please. [page 633]
MR. MITTEL: Your Honor, Mr. Motta prefers to affirm rather than to swear.
THE COURT: Very well.
MARCELO RAMOS MOTTA,
called as a witness by the plaintiffs, having being duly affirmed to tell the truth took the stand and was examined and testified as follows:
DIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Would you please state your name for the record, please, and spell your last name, please?
A. My name is spelled Marcelo, M-a-r-c-e-l-o; Ramos, R-a-m-o-s; Motta, M-o-t-t-a.
My address is Post office Box 9044, Nashville, Tennessee 37209, U.S.A.
Q. Mr. Motta, you've already heard some of the various topics that have been discussed here this week?
A. Most certainly did.
Q. I'd like to ask you a few questions on some of them as regarding Sascha Germer's death certificate.
Were you ever shown a copy of that certificate by Martin Starr?
A. Yes, sir. We obtained it at my request.
Q. Did you look at the certificate?
A. Yes, sir. [page 634]
Q. Is it your opinion that that certificate indicates she died of starvation?
A. That certificate, sir. I'm not normally formulated as to indicate that someone died of starvation. The causes of death are given by the examiner.
Q. Do you still believe today that Mr. McMurtry's responsible for her death?
A. I didn't say that Mr. McMurtry was solely responsible for her death. But I do think --
Your Honor, excuse me, Your Honor.
Two documents have been mentioned here by Plaintiffs. May I --
THE COURT: Yes, certainly.
If you need to answer Mr. MacKenzie's questions by reference to documents that have been introduced into evidence, you may certainly have those in front of you.
BY MR. MacKENZIE:
Q. Excuse me, Mr. Motta. I just want to know about Sascha Germer's death certificate.
My question was: Do you still believe Mr. McMurtry was responsible for the death of Sascha Germer?
A. He is one of the people responsible for the way she died, yes.
Q. Now, I'd like to show you Plaintiff's 67 which we [page 635] were just discussing a moment ago. And it was offered as a letter which you had sent to Mr. Heidrick.
Do you recognize the letter?
A. I recognize it.
Q. And did you send that letter?
A. Yes, I did.
Q. Did you send the letter to anyone else other than Mr. Heidrick?
A. That's an interesting point. I don't recollect it.
Q. Does that mean you don't remember or you know that you didn't?
A. I'm sorry. I'm thinking about it. Everyone's memory is varied as has been shown here in the last three days. But I do not think that I sent it to anyone else, at least on anyone in California.
Q. So there's a -- so you sent it to someone, to other people outside of California?
A. A copy would have been sent to Mr. James Daniel Gunther.
Q. Is this Mr. Gunther who was your A.'.A.'. representative in the inside?
A. Yes.
Q. Did you expel him from your organization?
A. Expel who, sir?
Q. Mr. Gunther. [page 636]
A. Which one, sir. I am sorry, he belonged to two organizations: the A.'.A.'. and the OTO.
Q. Well, from the oTO. Was he expelled from that?
A. Yes, he was.
Q. Was that reason for the expellation because you believed he had attempted to kill someone?
A. He had not attempted to kill someone. He had discussed attempting to kill someone with Mr. Richard Gernon.
Q. And did Mr. Gernon tell you that?
A. Mr. Gernon wrote me, yes.
Q. Where were you at this time?
A. In Brazil.
Q. When did you first come to the United States?
A. I believer it was in 1981.
Q. And when was the last time prior to the 1981 that you had come to the United States?
A. Late 1952 when I came to study in this country. I went back to Brazil in early 1961.
Q. You came to the United States and you returned to Brazil in 1961?
A. Yes.
Q. In those 20 years, you had not returned to the United States?
A. No, sir. [page 637]
Q. Have you published these claims of Mr. McMurtry's alleged involvement in Sascha Germer's death elsewhere?
A. You mean "elsewhere" than in the books you have here?
Q. Well, other than in that letter, you've mentioned that in your books?
A. Yes.
Q. In how many of your books have you mentioned that?
A. I do not recollect. But the books are available, all of them.
Q. I'd like to ask you about you books now.
Are you doing business as a Thelema Publishing Company?
A. No, sir. Thelema Publishing Company is not a business I have.
THE COURT: Is not what, sir?
THE WITNESS: Is not the registered business name.
BY MR. MacKENZIE:
Q. It's also on your book?
A. Yes, sir.
Q. What is it then?
A. It's an imprint of the Order of the Lanart (phonetic) {SIC sb. "of Thelema" -def; mb. "of the Lamen" -pla} or alternative of the title which was used, which was used by me. [page 638]
Q. How much do you books sell for?
A. The hardbound books at first was sold -- sorry. The hardbound books are for 44 each. There are limited editions.
Q. How do you sell those, though book stores, or do people send you the money directly?
A. I sell them to book stores. We have a reading -- excuse me. How do you say that? We have a readers' list.
And I also sell them to distributors.
Q. About how many copies of each book do you distribute?
A. As often as they are asked, which is not very often.
Q. How many have you distributed of the last five books on an average?
A. This edition are limited to 1,000 books each. We can't afford more of the first book, "Equinox".
Of the first book, we published the "Equinox" 5-2, no copies remaining. The last batch was sent to the distributor about three months ago.
To other books of the "Equinox" 5-3, we still have about 500.
Of "Equinox" 5-4 we still have about 500.
Also, I don't recollect how many we have of [page 639] the paper books except that the first one, edition of 1,000, sold out and has just been reprinted.
Q. So that you're continuing to sell these books?
A. Yes, sir.
Q. How much did you earn per book?
A. I don't earn per book.
Q. Are there any earning produced by these books?
A. Would you please repeat the question?
Q. Have there been any earnings produced?
A. Yes, but they're not mine.
Q. Whose are they?
A. The Society.
Q. What's your role in the Society; do you have an office?
A. I am the Supervisor General.
Q. And does the Society pay your expenses?
A. Unfortunately, I cannot work for my living in the United States except for the Society. So the Society has to pay me expenses.
Q. And where does the Society get it earnings?
A. From the sale of books.
Q. How much are those earnings?
A. It varies extremely. It varies from $250 a month to a 1.200. It hasn't been that high for quite some time. [page 640]
Q. After deducting its corporate expenses, that doesn't leave much money for you?
A. No, sir.
Q. How are you able to get by on $250 a month?
A. I am not, but I have friends.
Q. I'm sorry.
A. I have friends.
Q. Now, you say the corporation pays your expenses?
A. Within its possibilities.
Q. Do they pay your rent expenses?
A. Yes.
Q. Do they write the check to your landlord?
A. Yes.
Q. What about when you go to the supermarket; how do you pay at the supermarket?
A. I have a monthly allowance from the Society depending on what money is available.
My bank account and the bank account of the Society are completely different, apart. Whenever I make a check to myself from the Society money, it is written in the check that the check is for me. I pay tax on whatever money the Society lets me have.
Q. Who is the secretary of your corporation?
A. There are no secretaries in my corporation.
Q. Is there a treasurer? [page 641]
A. Not yet. There is no need for one, that is, no treasurer.
Q. Who issues the checks?
A. I do.
Q. Who gives approval on the issuance of checks?
A. I do.
Q. Does anybody else have any say-so in this?
A. Any member can look at my accounts any time.
Q. My question is: Does anyone have any say-so as to the making of these expenses?
A. Would you please define what you mean by "say-so"?
Q. Power of veto or power of dissent?
A. No.
Q. Who makes the decisions for the Society?
A. I do.
Q. Is there any sort of approval by the Board of Directors?
A. No.
Q. Do you have a Board of Directors?
A. No.
Q. Are you the only officer of the Society?
A. At present.
THE WITNESS: Your Honor, as you know there is a request of attorney fees which is based on my well-known anti-semitism. Which, if granted, would [page 642] completely harm members of the Society. There are four I have requested to resign. And I am at present the only person responsible for the affairs of the Society. The situation may be changed momentarily, of course.
BY MR. MacKENZIE:
Q. You asked each of the directors to resign?
A. Yes, sir. And the members.
Q. And the members?
A. And the members to resign.
Q. So you currently have no members?
A. No, sir.
Q. Other than the sale of books by Thelema Publishing Company, does the oTO have any other income?
A. Donations.
Q. How do you get donations?
A. I ask -- I pass the hat around.
Q. You published a book "Magick Without Tears"; have you not?
A. Yes, sir, unexpurgated. Unexpurgated. The title is "Magick Without Tears, Unexpurgated."
Q. Do you recall if Mr. McMurtry has any interest in that book's propriety?
A. Not at present, no, sir.
Q. You've seen the letter from Mr. Crowley in which he is granted 25 percent that was introduced earlier at [page 643] trial?
A. Yes.
Q. And have you read Mr. Crowley's will?
A. Yes, sir.
Q. Is it your belief that the will revokes the 25-percent grant that Mr. Crowley had made two years previous?
A. That is a legal opinion. You'd have to ask my attorney.
Q. What did you base it on that Mr. McMurtry doesn't have any rights in that book?
A. At present?
Q. Yes. At present, why doesn't he have any rights?
A. Because like all of the members of the so-called Agape Lodge, he has not paid dues in 45 years.
Q. How do you know that?
A. He has paid them to himself.
Q. Why did that revoke his rights in "Magick Without Tears?"
A. Because one of the books by which -- one of the books of rules and regulations which you mentioned first here. By one of those books, members are supposed to pay their dues punctually.
Also members are supposed to help other members in stress at any time. Also members are [page 644] supposed to care for the health of elderly members.
Also members are supposed not to lie about each other; not to slander each other; not to attract common property of the entire Society for their own use.
Q. When you speak about slandering each other --
A. Not to sue other members.
Q. Didn't you write letters in the early '70s where you intended to sue Mr. McMurtry?
A. Yes, sir.
Q. Do you feel that you have libeled or slandered him with some of the things in your book?
A. Not in the least.
Q. Let me still get back to the question of whether or not you believe that the 25 percent interest was somehow revoked or lost to Mr. McMurtry?
A. The first edition of this book was one-fifth of the copies approximately. The 25 percent that Mr. McMurtry would have gotten from the sales of this book would have been far outweighed by the dues he had not paid in the past 45 years.
Q. Let me show you Plaintiffs' Exhibit 28.
And would you please tell me where in there it says where it's limited to the amount of dues or in any way restricted? [page 645]
A. I would prefer that my attorney answer that question.
Q. Well, I'm asking you because you must have formed this conclusion before you consulted with him on this matter?
A. I do not think we have to go back to the document that you have introduced here. Mr. McMurtry has totally failed to fulfill his duties as a member of the OTO for 45 years, at least. Yet he claims the rights of a member.
That is against all common-known law of contracts, especially international contract law.
Now, excuse me, I have nothing else to say.
Q. Now, I would like to show you Plaintiffs' Exhibit 8.
And if you would identify that please?
A. Yes, sir.
Q. Is that a letter that you sent?
A. To Mr. McMurtry to you.
Q. To me?
A. Yes, sir.
Q. What prompted you to send this letter in at this time. This is July of last year?
A. You are quite right, sir. I should have sent it much earlier. But I take time to make up my mind [page 646] on things that were difficult and involved the Order.
A. At least as much as he, and I believe more.
Q. Well, if you would just answer the question. Do you have any written authority that allows you to expel him?
A. No, sir.
Q. Thank you.
To how many other people did you send this letter?
A. I believe I sent a copy to Mrs. Helen Parsons Smith and a copy to Ms. Phyllis Seckler. And, of course, my directors had copies of it.
Q. I'd like you to read the portion from the bottom of page 1. It's marked paragraph D.
How many people do you think he allowed to die in such a way?
A. Mr. Germer and Mrs. Germer.
Q. Oh, Mr. Germer, too?
A. Yes, sir.
Q. And how was he responsible for Mr. Germer's death?
A. I testified as to this this May. He didn't pay dues; he didn't help him at all financially.
And the duties of any member of the Order at [page 647] any time is to take care of the health and the welfare of the older, especially who is, he or she, belongs to the Ninth Degree.
Q. And you can say this having been in Brazil for 20 years?
A. I will remind you, sir, that I heard Mr. McMurtry testify in May before I wrote this.
MR. MacKENZIE: Move to strike any portion of that, Your Honor, so much as it relates to hearsay.
BY MR. MacKENZIE:
Q. Do you have any direct knowledge that he allowed Karl Germer to die?
A. I heard him state so.
Q. Other than his alleged admission of that fact, do you know from any other source that this happened?
A. Yes, sir.
He was under oath.
Q. And you're stating that he admitted that he had allowed Karl Germer to die; he said that?
A. He said that under oath. You can look at the record.
Q. Is that what you're saying he said?
A. That's what I heard.
He said that he hadn't helped Mr. Germer financially at all in his later years. [page 648]
MR. MacKENZIE: No further questions.
Thank you.
CROSS EXAMINATION
BY MR. MITTEL:
Q. Mr. Motta, there was the testimony about Plaintiff's 67 which is a letter that you sent to Mr. Heidrick.
And you were asked to whom you sent copies. And you said perhaps to Mr. Gunther.
Might you also have sent a copy to Mr. Starr?
A. I do not recollect, sir.
Q. There was some testimony about the Thelema Publishing Company which you said was an imprint used by Mr. Germer and yourself?
A. Yes, sir.
Q. Would you tell the Court when you used that name?
A. Are you asking me to tell the Court or --
Q. I'm asking you to please tell the Court when you first used that name?
A. I used it in 1962 with my own money. I used it at his request.
Q. And by "it," you mean Thelema Publishing Company?
A. Yes.
Q. And you've used it since then? [page 649]
A. Yes.
Q. You testified that you because of your visa status, you can't work other than for the OTO?
A. I came to the United States first to work for Crowley Publishing Company. It went out of business.
It is a condition that you only work for the people who sponsored your presence in the country.
Q. Do you have any income other than the expense reimbursement that you receive from the Society Ordo Templi Orientis?
A. No, sir.
Q. You said it pays your rent.
Where is the office of the Society Ordo Templi Orientis?
A. Nashville.
Q. Could you describe for the Court the place where you live?
A. It's a one-room apartment in Nashville, Tennessee. I'm sorry, it's a one-bedroom apartment in Nashville.
That is, no living room, because the living room is the office.
MR. MacKENZIE: {SIC sb. "MR. MITTEL" -weh} That's all I have on cross-examination at this time, Your Honor.
Thank you. [page 650]
REDIRECT EXAMINATION
BY MR. MacKENZIE:
Q. Did I hear you say that you had been publishing under Thelema Publishing Company in Brazil?
A. Thelema Publishing Company.
And Thelema publishing Company can only be used during the period of the silence of A.'.A.'. It cannot be used after this period of silence in the A.'.A.'.
The Thelema, the Order of Thelema is subordinate to the A.'.A.'. It has nothing to do with the OTO.
Q. Is there any connection between the A.'.A.'. and the OTO?
MR. MITTEL: Objection. This was not inquired into on direct. It was not raised on cross.
THE COURT: He's just opened it. He's volunteered.
THE WITNESS: I'm sorry, Your Honor. I am thinking of --
THE COURT: Take your time.
THE WITNESS: The first primary connection is that the OTO was the first organization of the OTO to pass into the Odeon {SIC sb. "old Aeon" --pla --def} to accept the law of Thelema which was promulgated through the A.'.A.'. [page 651]
Now, since then -- this is not general knowledge.
Since then Mr. Germer decided because of the scandals and the irregularities in the OTO that any members that were given a charter to work with the OTO would have to be trained in the A.'.A.'. as well.
BY MR. MacKENZIE:
Q. Well, as I see it, you're saying there is a connection between the OTO and the A.'.A.'.?
A. Oh, definitely. The OTO sets {SIC mb. "accepts" -weh} the law of Thelema which is propounded by the A.'.A.'.
Q. Now, you mentioned that you had Thelema Publishing Company in a period of silence when it cannot publish?
A. I have nothing to do with Thelema Publishing, sir. We are talking about Thelema Publishing Company.
Thelema Publishing Company can publish right now, because the A.'.A.'. -- oh, I'm sorry, no. Thelema Publishing Company ceased publications with "Equinox" 5-4, because the A.'.A.'. went in its period of silence.
It can only start publication again in 1986, April 8, noon, Cairo, Egypt time.
Q. Did you say that you had published something in 1963 in Brazil; did I understand you correctly?
A. In 1962.
Q. And in '62 -- and that was in Brazil? [page 652]
A. Yes, but the book was printed in Brazil to be sold in the United States.
Q. Was it an English book?
A. L-i-b-e-r A-l-e-p-h.
Q. Was that a book written by Aleister Crowley?
A. Yes, sir.
Q. Is that a book that you claimed right to publish?
A. I published it with the permission and direct order of Mr. Germer.
I worked on the introduction; provided the layout for the index and the translation of the Table of Contents, all under his supervision.
And he was very mad at me at times.
Q. Did your name appear in there?
A. He wanted me to put my name -- I'm sorry, he wanted me to put my name in, but I refused.
Q. I see. And you said the Society works out of your apartment or has its headquarters there?
A. The office is in my apartment. Or rather, my apartment is in the office.
MR. MacKENZIE: No further questions.
Thank you.
THE COURT: One second, Mr. Motta.
Have you used the name Thelema Publication in connection with works that you have written? [page 653]
THE WITNESS: No, sir,
THE COURT: Thank you very much.
THE WITNESS: Am I dismissed, sir?
MR. MITTEL: May I ask a question in response to that, Your Honor?
THE COURT: Yes.
RECROSS EXAMINATION
MR. MITTEL: Your Honor, I'm going to mark and formally offer --
THE COURT: Well, if you are going to enter the subject matter for your own case --
MR. MITTEL: I want to clean up one point.
BY MR. MITTEL:
Q. "Equinox" 5-2, a book that shows on the cover Thelema Publishing Company. What is in the book?
Can you just tell the Judge basically what the contents are?
A. This is a translation of a Portuguese poem by a Portuguese poet. And he was a member of the A.'.A.'.
There are book reviews. There is another translation of the Portuguese poem by the Portuguese poet. He was also a member of the A.'.A.'.
The OTO Manifesto written by me, comments by Aleister Crowley. Poem by Mr. Ellis, now deceased. [page 654]
Q. That's enough.
So do I understand then that there is material originally written by Aleister Crowley in this book?
A. Oh, of course.
Q. And material originally written by yourself in this book?
A. Yes.
Q. Do other works which carry the imprint Thelema Publishing Company contain the same type of material?
A. Yes.
MR. MITTEL: That's all I have.
THE COURT: If you will, would you please establish the date?
MR. MITTEL: Do you want me to go into that now?
THE COURT: If you would, please?
MR. MITTEL: Why don't I do that?
BY MR. MITTEL:
Q. What is the date of publication of "Equinox" 5, No. 2?
A. March 1979. It was the only book that was published out.
Q. Now, where were you living when "Equinox" 5, No. 2 was published?
A. I was living in Rio de Janeiro, Brazil. [page 655]
Q. There's been testimony in this case about Mrs. Smith's business name, Thelema Publications. Do you remember that testimony; did you hear it?
A. I;m not sure.
Q. When did you first become aware of the fact that Mrs. Smith was in the publishing business?
A. I don't recollect for sure. But it was, I think, while I was still in Brazil.
Q. Did you know about her business when "Equinox" 5, No. 2 was published.
A. I don't think so.
Q. Do you remember how you first found out?
A. Well, the first time I saw a book done by her, I actually saw a book done by her, was here in the United States when we were preparing "Equinox" 5-3.
Q. You saw one of their books. Did you see any indication of the name Thelema Publication?
A. Yes.
Q. Did it bother you that she was using a name something like that, the name Thelema Publishing Company?
A. It would have bothered me if she had used the name Thelema Publishing Company.
Q. But it didn't bother you that she was using the name Thelema Publications? [page 656]
A. No.
Q. When was the first time that -- let me go back for a moment to your work with Mr. Germer.
Let me make another suggestion.
MR. MITTEL: Your Honor, that's all I had planned to go into.
THE COURT: Let me make sure I understand what the record is. The use of the name Thelema, as I understand, was in 1962. Mr. Motta caused a book to be published using the name Thelema.
That was with the writings of Aleister Crowley in 1969.
And it was in 1965 that Mr. Motta put out under the name of Thelema, the "Equinox" 5-2.
MR. MITTEL: 1979.
THE COURT: 1979, which contains matter that he has added his comments to and made translations of and interpretations of.
MR. MITTEL: Well, I was going to inquire into that on direct.
THE COURT: All right, Mr. Motta, you can step down.
Thank you.
(Witness excused.)
MR. MacKENZIE: That concludes my case in [page 657] chief.
Plaintiffs rest.
THE COURT: All right. We'll take a recess for ten or fifteen minutes and then the defense will begin its Case in Chief.
(Brief recess taken)
THE COURT: Mr. Mittel, do you wish to make an opening statement?
MR. MITTEL: I wish to do so, Your Honor.
I also want to -- there was some motions that I asked to make at the end of Plaintiffs' case.
One was the motion to strike the testimony and the document which has not been offered. So, therefore, just the testimonial translations performed by Mr. McMurtry of the Germer document.
THE COURT: Well, I'm not going to strike that. I think it's sufficient information.
MR. MITTEL: Your Honor, we had decided we'd just go over your list and our list after lunch and come to some conclusion about what needs to be offered.
I'm just making sure there's nothing else preliminary. There's one other motion to strike.
With reference to Plaintiffs' Exhibit -- I'm sorry. I don't have it. Plaintiffs' Exhibit 94, which is the letter for the -- I think her name is Sandra [page 658] Cobbin, Department of Consumer Affairs, City of New York.
THE COURT: Yes, I have that.
MR. MITTEL: I want to move to strike that document, all the testimony relating to it on the ground that whatever it may be, it alleges evidence of a complaint made to a government official to protect one's legal rights. And is therefore privileged.
THE COURT: I think that already in the plaintiffs' case, there's been enough established.
Governmental privilege, as I understand it, is not an evidentiary privilege. It's a privilege against that action being the basis for a legal complaint.
MR. MITTEL: Well, that's true. But since the document forms one, at least, as I understand it, the plaintiffs' case, one of the bases of their case, I want to be on the record --
THE COURT: I thought it was offered for evidence on the confusion of names. I don't think it can be used to support that claim, otherwise, the privilege becomes meaningless.
MR. MacKENZIE: Your Honor, it was the defendants that brought this claim on in the first place.
THE COURT: 94 is not evidence that may be [page 659] admitted as evidence.
MR. MITTEL: There's another objection.
I just want to make that by a motion to strike.
THE COURT: Well, the motion to strike is denied.
OPENING STATEMENT ON BEHALF OF THE DEFENDANTS
MR. MITTEL: If I can turn to my opening --
THE COURT: Yes.
MR. MITTEL: -- what we intend to show first with Mr. Motta and then through the plaintiffs themselves is the following:
First there is an organization known as the Ordo Templi Orientis that is governed according to the principles set out in the Constitution which is in evidence.
And another document which we're going to offer at he beginning of Mr. Motta's testimony that the person who directs the administration of the Order is somebody called the Outer Head. And that Mr. Motta is the Outer Head of the Order.
I understand that that specific testimony is going to be taken subject to a motion to strike.
We're going to show that Mr. McMurtry is not the Outer Head of the Order. We will show that Mr. [page 660] Motta is a member of the Ninth Degree of the Ordo Templi Orientis and that he, therefore, has a right in common with the other members of the Ninth Degree to administer its property.
Turning then more specifically to the counterclaims that we've asserted, we're going to show you, first of all, that within the whole books of the Thelema is a work in which several of the plaintiffs have been involved.
There is publication of previously unpublished Aleister Crowley material on which the Ordo Templi Orientis owned the copyrights. And that, therefore, that plaintiffs are guilty of copyright infringement.
As to the four counts of statutory limitation, trade infringement, we will show you that those have been properly represented by the Defendant, Society Ordo Templi Orientis.
They, therefore, are owned by the Society and that the plaintiffs' use of them is infringement.
We are going to show you that Mr. Motta is entitled to use of those trademarks. And even if it doesn't antedate the Plaintiffs' use because of the problems of who knew that, when and where they were operation, then we're dealing in common law trademark infringement. [page 661]
Mr. Motta would have certain rights to certain areas and the Plaintiffs will individually have certain rights in certain areas.
And that will be also the nature of the proof we offer on the -- this is the nature of the proof we offer.
We're also going to prove that at some point in the 1950s Mr. Motta wrote a personal letter to Mr. Germer, his teacher, his mentor.
That that letter was not circulated to other people. That Mr. Germer {SIC sb. "Mr. McMurtry" ?! -weh} and Mr. Heidrick passed around Mr. Motta's private and personal letter.
In fact, I've already proved that Mr. Wasserman was given specific instructions and specific powers to act as Mr. Motta's agent and fiduciary and obtain at least photocopies.
Not only did he fail to do that, but he specifically affirmatively abandoned his representation, if you will, of Mr. Motta.
And as a direct result of that was the number one failure to get copies of the library or to obtain access of the library from {SIC sb. "for" -weh} Mr. Motta.
And two, the ultimate theft of the library either by one or all of the plaintiffs or by someone unknown. {page 662]
We're going to show that the library is an important, not only piece of personal property in terms of normal tangible personal property considerations, but an important element of the religion about which we have been talking here so far this week, namely, Thelema.
Then we hope to prove that the Plaintiffs, all of them, or at least some of whom are perhaps members of the Ninth Degree of the Ordo Templi Orientis failed in their duties to other Ninth Degree members to protect the property of the Order.
And this is sort of a synopsis of the conversion claim.
But assuming we failed to prove that they, or some of them converted the library, then certainly it was due to their negligence, perhaps negligence, that the library has been which also damages Mr. Motta.
I think that covers all of the specific causes of action raised in the Complaint and in the Counterclaim.
One other thing I should touch on is that Mr. Motta is going to get on the stand and you're going to hear from him basically his life history.
Having said all that, I would like to call our first witness.
THE COURT: Yes. [page 663]
MARCELO RAMOS MOTTA,
called as a witness by the defendants, having previously affirmed, resumed the stand and testified as further as follows:
THE COURT: Mr. Motta, you are still under oath from your previous testimony.
THE WITNESS: Yes, sir.
DIRECT EXAMINATION
BY MR. MITTEL:
Q. Mr. Motta, I'm going to give the court two copies of each documents as the document that had been marked Defendant's exhibit 1-A.
Could you briefly tell us what that is, please?
A. This is one of the two main documents that governs the privileges and duties of the members of the OTO internationally.
It is supposed to be used wherever the membership of the Order exceeds 1,000 souls. But everyone is supposed to adhere to it as much as possible in whatever conditions it is possible to adhere to it.
Q. Thank you.
MR. MITTEL: Defendants offer Exhibit 1-A
THE COURT: It may be admitted into evidence. [page 664]
(Whereupon, Defendant's Exhibit 1-A was admitted into evidence.)
BY MR. MITTEL:
Q. Let me show you a document that I've marked --
MR. MacKENZIE: I'm sorry, Your Honor. I object at this time. Is that copy of "Equinox" a later edition and is it --
THE COURT: Then let's establish the date.
MR. MITTEL: I was going to do that.
BY MR. MITTEL:
Q. Mr. Motta, have you compared the text of this document with the text -- let me withdraw the question.
Do you have a copy of the original "Equinox" in your possession?
A. Not here. I have it in Nashville. It took it to Maine with me.
Q. Have you had occasion to read that book?
A. Yes.
Q. And you compared that text of this portion of the 1974 "Blue Equinox" with the other "Blue Equinox"?
A. There is a difference. This is a reduced copy of the "Blue Equinox". The original edition was much bigger. But it is the same. It is given the same -- it's the same -- it's a reproduction.
Q. Word-for-word? [page 665]
A. Word-for-word.
Q. And you say "this is a reduced copy," you mean the book is smaller?
A. The book is smaller than the original edition which was about the size of this page, a little smaller.
Q. Thank you.
MR. MITTEL: Defendants again offer Defendants' 1-A
THE COURT: It may be admitted.
BY MR. MITTEL:
Q. Next let me show you what I've marked as Defendants' Exhibit E. A work entitled the "Equinox" 5, No. 2.
Could you briefly describe for the Court what that is?
THE COURT: What is the exhibit?
MR. MITTEL: "E."
THE WITNESS: Do you wish for me to describe the book?
MR. MITTEL: Just very briefly.
THE COURT: Just a second, I'm not sure I've got "E."
MR. MITTEL: No, you don't.
What I'm going to do with Your Honor's permission is offer one original exhibit. [page 666]
The plaintiffs, unless I'm mistaken, have copies of all these works. It they insist, and I don't think they will, because I discussed this with Mr. MacKenzie.
We are just going to use on original. It the Court insists we will have photocopies made.
THE COURT: No, that's not necessary.
BY MR. MITTEL:
Q. Why don't you tell us briefly -- now, there are going to be six books that Mr. Motta has been involved in the publication of in the last half dozen years.
Mr. Motta, let me just ask the question: Does this book contain material written originally by Aleister Crowley?
A. Yes, sir.
Q. Defendants' offer Exhibit E.
THE COURT: It may be admitted.
(Whereupon Defendants' Exhibit E was admitted into evidence.)
BY MR. MITTEL:
Q. Let me now show you Defendants' F, a work entitled the Shycleese (phonetic) {SIC sb. "Chinese" -def} Text of the Magic Mysticism [page 667] being "Equinox" 5, No. 3.
Did you have a anything to do with the writing and publication of this work?
A. Excuse me, yes.
I hesitated because this was already done when I was in the United States, and I wanted to see what parts of it I did myself.
Q. Does this work contain material originally written by Aleister Crowley?
A. Yes, sir.
Q. And is there also some material in here written by yourself?
A. Yes.
MR. MITTEL: Defendants offer Exhibit F.
THE COURT: May be admitted.
(Whereupon, Defendants' Exhibit F was admitted into evidence.)
BY MR. MITTEL:
Q. In connection, I'm going to show you a work entitled -- originally being "Equinox" 5, No. 4.
Did you have a role in the writing and publication of this work?
A. I typeset it myself.
Q. Is there material written originally by Aleister Crowley in this work? [page 668]
A. Yes.
Q. Is there material written originally by yourself in this work?
A. Yes.
MR. MITTEL: Defendants offer Exhibit G.
THE COURT: It may be admitted.
(Whereupon, Defendants' Exhibit G was admitted into evidence.)
BY MR. MITTEL:
Q. New let me show you a book entitled "Yoga and Magick", being Book 4 Part 2, Volume 6, No. 1.
Let me ask you if you had a role in the writing and publication of that work?
A. I don't recollect if I typeset it myself, but it was produced by me.
Q. And in this work, was there material written by Aleister Crowley?
A. Yes, sir.
Q. There were also materials written by yourself?
A. Yes.
Q. Next let me show you a book entitled "Magick and Mysticism" being Book 4, Part 2, Vol. 6, No. 2.
And let me ask you again if you had a role in the writing?
THE COURT: What exhibit number is that? [page 669]
MR. MITTEL: Defendants offer Exhibit H.
THE COURT: May be admitted.
(Whereupon Defendants' Exhibit H was admitted into evidence.)
BY MR. MITTEL:
Q. Did you have a role in writing and publication of that book?
A. I believe I typeset this one myself.
Q. Does that book contain material originally written by Aleister Crowley?
A. Yes, sir.
Q. And does it also contain material written by yourself?
A. Yes, sir.
MR. MITTEL: Defendants offer Exhibit I.
THE COURT: May be admitted in to evidence.
(Whereupon Defendants' Exhibit I was admitted into evidence.)
BY MR. MITTEL:
Q. I show you a book entitled "Magick Without Tears, unexpurgated", Vol. 6, No. 3.
Let me ask if you had a role in the writing and publication of that work?
A. Yes, sir. I typeset this one myself. [page 670]
Q. Is there material by Aleister Crowley in this work?
A. Yes, sir.
Q. Is there material by yourself in this work?
A. Yes, sir.
MR. MITTEL: Defendants offer Exhibit J.
THE COURT: May be admitted into evidence.
(Whereupon, Defendants' Exhibit J was admitted into evidence.)
BY MR. MITTEL:
Q. Let me show you a work entitled the "Holy Book of Thelema", which is published by Samuel Weiser, York Beach, Maine.
Let me ask you if you had a role in the writing or publication of that book?
A. No, sir.
Q. Have you reviewed the contents of this work?
A. No, sir.
Q. Do you know what's in it?
A. It's supposed to be the whole {SIC sb. "holy" -pla} books of Thelema including, if I am not mistaken, in the public domain.
MR. MacKENZIE: I ask that the last portion be stricken, Your Honor.
THE COURT: I'll sustain it just for what the witness' understanding of it is.
BY MR. MITTEL: [page 671)
Q. Let mw shoe you next, which I represent to the Court is the last page of the portion of the book entitled "Preface."
Let me ask you to read into the record the name of the author of the preface of that portion of the book.
A. Grady Louis McMurtry.
Q. Is that the same, if you know, Grady Louis McMurtry who is the plaintiff in this case here?
A. Yes, sir, to my knowledge.
MR. MITTEL: Defendants offer Defendants' K.
THE COURT: May be admitted.
(Whereupon Defendants' Exhibit K was admitted into evidence.)
BY MR. MITTEL:
Q. Mr. Motta, how old are you?
A. I believe I'm 53 years old. My birthday is in June.
So sometimes it's difficult, but I think I'm 54.
Q. Where were you born?
A. Rio de Janeiro, Brazil.
Q. How long did you remain in Rio de Janeiro or in Brazil, I should say? [page 672]
A. Originally?
Q. Yes, sir.
A. Until I was almost 21 years old.
Q. Did you attend grammar school, high school in Brazil?
A. Yes, sir.
Q. Did you first become involved with Thelema when you were in Brazil?
A. Indirectly, although I did not know it at the time, yes.
Q. When did you have your first direct involvement with Thelema?
A. In 1952 in Portugal.
Q. Could you tell the Court briefly what that initial involvement was?
A. I had belonged to an organization in Rio de Janeiro called Frater Nitafro Sicruciana Antiqua {SIC sb. "Fraternitas Rosicruciana Antiqua" -pla}.
I did not know at the time but this organization had been founded by an OTO member of the Eighth Degree called Krumm-Hewler {SIC sb. "Krumm-Heller" -weh}.
This organization had adopted some of the material of the book of the law and used it in its rituals.
There was a photograph in a room in the main lounge. And when I got to Portugal, the ship made a [page 673] stop in Lisbon, and I naturally went to a book shop and naturally gravitated to the occult section of the book shop.
There was a book called "The Great Beast" by John Symones {SIC sb. "Symonds" -def}. And I opened it and in the frontis piece was the same photograph that I had seen in the lounge in Brazil. Naturally I was interested and I bought the book.
That was when I first learned directly of Thelema and Aleister Crowley.
Q. When was you next involvement?
A. Well, I was going to Europe on a trip, cultural trip, before coming to the United States to study. And the chief of the organization in Rio has asked me, since I was going to Europe to make contact with his immediate supervisor and head of he organization in Germany whose name was Parsifal Krumm-Heller.
They were having some differences because of an American society also called Rosicrucian. And the chief in Brazil wanted me to be his ambassador.
So he told me to speak to his chief in Germany.
Q. All right. At some point then after you finished the visit you came to the United States and attended college? [page 675]
A. Yes, sir.
Q. Where did you attend college?
A. Louisiana State University in Baton Rouge.
Q. Did you graduate from there?
A. I graduated with a B.A. in Literature. And I took one year towards the Master of Arts.
But I got bored and dropped out and started trying to freelance writing, writing freelance for a living.
Q. Were you successful at that?
A. Yes, I was beginning to have some success with it when I had to go back to Brazil.
Q. Now, while you were in the United States -- if I remember your testimony this morning, from 1952 until 1961?
A. Yes, sir.
Q. Did you come into contact with a gentleman by the name of Karl Germer?
A. Yes, sir.
Q. And could you describe for the Court briefly your initial contact with Mr. Germer and what that was about?
A. I met Parsifal Krumm-Heller in Germany. He took me on as a personal pupil in mysticism. And it's a loose term, occultism. And instructed me for a while.
When I went to the United States, I stayed [page 675] under him for several months.
And then he wrote me that he had decided to pass me to a much higher initiate than himself, because he though It would profit more from this other man's instructions than from his.
And he put me in contact with Mr. Karl Johannas Germer.
Q. And how did that contact take place, by mail, by phone?
A. The first contact us by mail. It had written an idiotic history of Rosicrucian. And he had sent a copy to them. And he sent a copy of the book to Mr. Germer.
And Mr. Germer wrote me with his critique which was very enlightening.
From this first exchange of letters I eventually was invited by him to go to his home in Hampton, New Jersey. And there he gave me this choice of either joining the A.'.A.'. or joining the OTO.
After reading the publication of the A.'.A.'. which is called "One Star in Sight", I immediately decided that that was what I was interested in. And I joined the A.'.A.'.
Q. When was that?
A. This was in 1953. I don't remember the exact date because my diaries are not here in the United States. [page 676]
Q. After you joined, which I understand took place in Hampton, New Jersey?
A. Yes.
Q. Did you go back to Baton Rouge?
A. Almost immediately. I stayed at Mr. Germer's home for about a week, I think.
Q. And after you went back to Baton Rouge, did you continue your correspondence with Mr. Germer?
A. He was my instructor and I was also asking him questions.
Q. And how much -- can you give us a general estimate of the volume of correspondence that you would exchange with him over the course of the year?
A. I imagine I would write him at least a month, sometimes more often, but at least a month.
Q. Is that once a month?
A. Yes.
Q. And did he write back?
A. Oh, yes, he always answered his correspondence very promptly.
Q. Were you put in touch with any other of his pupils?
A. Oh, no. I was an A.'.A.'. member, and a member is supposed to work alone.
Q. And for how long did you continue just as an A.'.A.'. member? [page 677]
A. Again my recollection is not very certain, because I do not have my diaries. But I believe it was in 1967 that on a visit to him -- actually it was at the end of the year. I do not know if I went at the end of the 1966 --
Q. You mean '56.
A. I'm sorry, I mean '56, very sorry. I've always been very bad with dates.
Q. Go ahead. You were not sure if you went at the end of '56 or some other year to where?
A. This time it was Barstow; he was living there. And he invited me to go because he wanted to, as he said in his letters, he had some material that he didn't want to mail to me.
And he wanted me to be personally in his presence.
Q. By the time you went to Barstow, had you progressed at all in A.'.A.'.?
A. No, I was still a probationer.
Q. And when you went to Barstow, what happened in Barstow?
A. When I went to Barstow, Mr. Germer made me sign the famous emblem and paper in triplicate and not use the knowledge contained in that paper to harm any member of the OTO. [page 678]
Q. Now when you say "famous," you say famous because there's been testimony about it here in this courtroom already?
A. Yes.
Q. Do I understand that he initiated you into the Ordo Templi Orientis at that time?
A. He initiated me into the Ninth Degree, Ordo Templi Orientis.
Q. When you say "Ninth," what do you mean?
A. The Ninth is a mystical grade. It has nothing to do with the general administrative and masonic work powers of the Order.
The members of the Ninth are supposed not to be known by the members of the lower grades at all.
Q. Now when you say that, do you have reference to some portion of the "Blue Equinox"?
A. It is what he told me and it is also in the "Blue Equinox".
Q. Whereabouts in the "Blue Equinox"?
MR. MacKENZIE: Objection. It this the original version of the "Blue Equinox"?
THE COURT: What volume ar we talking about?
MR. MITTEL: This part of, if I'm not mistaken, Exhibit 1-A. [page 679]
THE COURT: Would you go back to those exhibits and give me the publication dates of them?
MR. MITTEL: Shall I go backwards or forwards?
THE COURT: It doesn't make any difference.
MR. MITTEL: The first publication date is December 22, 1983.
THE COURT: "J"?
MR. MITTEL: Yes, "J".
"I" December 21, 1982;
"H," June 21, 1982;
"G," 1981;
"F," 1980;
"E," 1979.
THE COURT: What about 1-A?
MR. MITTEL: 1919, I think, was the date of the first publication.
MR. MacKENZIE: Your Honor, this is the edition that I'm concerned with about, because I believe there are some changes made. If we are talking about that edition, I want to know what date that was published.
THE COURT: Mr. Motta, would you look at the beginning of the book and find it, please. And tell [page 680] us what it says about the publication as relates to the date?
THE WITNESS: Yes, sir. It states in the copyright that this book was first published in 1919, that is, the original "Blue Equinox."
And it also states that it was reprinted in 1962. That was not done by Donald Weiser. {SIC sb. "1972. That was done by Donald Weiser." -weh}
I think Mr. Donald Weiser once wrote me a letter in Brazil and asked my opinion about --
MR. MacKENZIE: Objection, Your Honor.
That is hearsay.
THE COURT: Yes. If your counsel wants that as testimony, he'll ask you some questions.
THE WITNESS: I'm sorry, Your Honor.
MR. MITTEL: Was that what you needed, Your Honor?
THE COURT: Now, the original "Blue Equinox" was published in 1919?
MR. MITTEL: Mr recollection of the book at this time -- perhaps one of these gentlemen will agree or disagree or Mr. Motta will agree or disagree that it was 1919.
THE WITNESS: It was 1919.
MR. MacKENZIE: And Mr. Wasserman agrees as well. [page 681]
THE COURT: And 1-A contains extracts from the 1919 version?
MR. MITTEL: Yes, sir. That's Mr. Motta's testimony. I suspect if we brought a 1919 edition to the Court, we'd find that he was right.
THE COURT: Thank you, please proceed.
BY MR. MacKENZIE:
Q. Could you describe for the Court the main concerns of the A.'.A.'.?
A. The main concern of the A.'.A.'. is the evolution of the species. But it does this by trying to improve members of the species individually.
Q. And by "Individually," do you mean it has an organizational structure?
A. The A.'.A.'. has and can have no organizational structure, because it is a purely spiritual organization.
Q. There are masters on the one hand and students on the other?
A. this structure is that someone receiving -- someone instruction that person, that person is not normally allowed to meet other people who are instructed by his or her instructor.
He or she will only be able to know the student that he or she introduces. [page 682]
So it's a chain supposedly going out on the highest spiritual attainment, but in which individuals are discouraged, thoroughly discouraged, from working with each other so they will not interfere with the process of finding one's self, which is the main purpose of the whole thing.
Q. Now, what about the Ordo Templi Orientis. Can you describe its basic structure and its basic purpose, please?
A. The Ordo Templi Orientis, like any other serious organization, has for its purpose the improvement of the human species.
But it does so in masonic form, in the sense that people work in groups and by their correspondence and interaction are supposed to improve as a group and consequently to improve as individuals as well.
Q. And is it a more formal structure than the A.'.A.'.?
A. It has to have a structure on this plane.
Q. Is "this plane," the material?
A. The material plane, the world.
Q. Is the A.'.A.'. anything like the institution we've talked about governing the Ordo Templi Orientis?
A. No, there is an associate order associated with A.'.A.'. called the Order of Thelema, another Order of the Thelemite, which has a structure. [page 683]
But is is not a -- it's an organization to which you can join, but you must be at least a Zelator of the A.'.A.'. in order to join it.
And you're not automatically a member if you're a Zelator. You have to want to join and you have to be tested.
Q. How many grades or levels of attainment in the A.'.A.'. must one achieve before getting to be a Zelator?
A. Each grade leads to tentative introduction into the next grade.
Q. You heard some testimony about Aleister Crowley. Was he a member of any of these organizations?
A. He was a member of the OTO. The A.'.A.'. is extremely ancient. He was a member of the A.'.A.'. It is generally thought that he created it. But that is not correct.
What he did was to conceive a system of training which was much more efficient than what has been used before.
But the sequence of grades that he used were used in the 16th century, if I am not mistaken, with exact same names.
Q. And what rand did he hold in the Ordo Templi Orientis?
A. It's outer Head of the Order. And he was also the [page 684] spiritual entity which was supposed to rule and govern the Order.
Q. And what level of attainment had he reached in the A.'.A.'.?
A. He had reached 10:1 which is the degree that's called Ipsissimus, which is the highest degree. In which one can have consciousness while in a human body, while incarnated with a human body.
Q. How did Mr. Crowley achieve his status as Outer Head of the Ordo Templi Orientis?
A. He, on his own, and by his own genius and intuition, I guess, he discovered the secret of the Ninth Degree and published it occasionally in one of his books.
And the head of the OTO came running from Germany and immediately swore him to secrecy and initiated him in the OTO.
Q. And then did the head of the OTO appoint Mr. Crowley to succeed him?
A. Eventually, yes.
Q. Now, did Mr. Crowley then appoint Karl Germer to succeed him?
A. Eventually, yes.
Q. And was Mr. Germer also a member of the A.'.A.'.?
A. Yes. [page 685]
Q. What relative importance did Mr. Crowley ascribe the A.'.A.'. as opposed to the Ordo Templi Orientis?
A. I don't know what you mean by the question.
Q. Well, did he think that one was more important than the other?
A. Oh, there's no question that the A.'.A.'. was more important to him than the OTO.
Q. And why was that?
A. Because the OTO at the time he joined didn't even -- I must use mystical -- didn't reach the spiritual levels from which the life of a human being is coordinated and the A.'.A.'. did.
Q. And what was Mr. Germer's opinion of the relative work of the two organizations?
A. He also, of course, thought that the A.'.A.'. was more important than the OTO. And that's why he wanted to train people who were interested in the OTO. First of all, to assist and test them to make sure that they were, that they would survive.
MR. MacKENZIE: Objection, Your Honor.
Foundation as to what Mr. Germer's claims were.
THE COURT: Sustained.
BY MR. MITTEL:
Q. How do you know that? [page 686]
A. He told me; we talked about it.
Q. Did he write you about it?
A. Not referring directly to this. It was confidential matter.
Q. In you discussion --
MR. MacKENZIE: Move that answer be stricken, Your Honor.
MR. MITTEL: Your HOnor, as regards Mr. Germer's intent about that A.'.A.'. --
THE COURT: I think he can testify that Mr. Germer considered it important.
MR. MacKENZIE: It's based solely on hearsay.
THE COURT: I think it's admissible.
BY MR. MITTEL:
Q. There was some testimony that Mr. MacKenzie elicited from you this morning. Let me withdraw that.
This morning, Mr. MacKenzie -- earlier this morning, Mr. MacKenzie asked you a question about the connection between the A.'.A.'. and the OTO.
I think you said that Karl Germer had insisted that all OTO people should belong to the A.'.A.'. before joining the OTO because of some irregularities in the OTO.
Do you remember that?
A. Yes, I remember saying that. I don't know if I [page 687] expressed it very well.
Q. Well, let me just ask you that. Where there irregularities that Mr. Germer was concerned about?
A. The irregularities in the Agape Lodge, not just the Agape Lodge, the problems world-wide.
Q. Do you know whether those problems were being discussed by the people who are the plaintiffs in this case who were then members of the OTO?
A. After Mr. Germer gave me the paper, which by the way, I copied in my own typewriter by his instructions. He took me to visit all the A.'.A.'. -- I'm sorry, all the Ninth Degree members in California.
And he didn't at the time criticize any of them in any way whatsoever except for Mr. McMurtry. And his criticism was not specific at all. And it was not really in the manner of criticism.
He asked -- he told me that he has expected very much from Mr. McMurtry and Mr. McMurtry was not producing as fast as he could. And he asked me to talk to Mr. McMurtry about this.
Q. So when you were in California, are you saying that you met with Mr. McMurtry who's not here at the moment?
A. Well, I met -- we met at the Burlingames.
In fact, I lived with them for a while.
Q. Were they in the Ninth Degree of the OTO? [page 688]
A. Both of them,. yes.
I met Mrs. Parsons Smith and her husband and Mrs. Smith, herself. And I stayed with Mr. Germer.
And at least one night at their home, which wa on the beach on the California coast -- and I don't know if I'm forming the right succession of visits.
I know that we went and stayed there one night at the home of Phyllis Wade where I met her two daughters, two at least, and the son.
And then with Ms. Jane who I also met, who was the oldest member of the Order.
We went in, Mr. Germer and -- I would like to state for the record, Your Honor, --
Q. Everything is for the record.
A. I'm sorry. But two ladies have denied that testimony at all that he was a member of the Ninth. Mr. Smith was a very advanced member of the Ninth Degree., I asked him for advice on the Ninth Degree.
Mrs. Smith was not present, but she must have known that I had done it.
As for Ms. Wade, I remember perfectly well that they complained to me that she thought that degree was unfair to women because men had too much importance in it. And I remember perfectly well that I sympathized with her complaint at the time. [page 689]
I don't know if Mr. McMurtry knew that I was a member of the Ninth, because we didn't discuss the Ninth at all.
Q. Now, out of the two organizations, the A.'.A.'. and the OTO, which do you consider the most important?
A. The A.'.A.'.
Q. Why do you consider the A.'.A.'. the most important?
A. Because it reaches much further. But had I known sooner that Aleister Crowley had left his copyrights to the OTO, I would have shown much more interest in the OTO than I did.
THE COURT: Ladies and gentlemen, you are here as spectators only.
You are not to interrupt in any way or make any response to any of the testimony.
BY MR. MITTEL:
Q. Did the control of the copyrights have any relationship to the spiritual reach of the A.'.A.'.?
A. The problem is that Crowley couldn't have left his copyrights of the A.'.A.'. because the A.'.A.'. doesn't have existence on the material plane.
His writings, of course, -- I'm partial. After all, I'm a follower in the sense that I follow his doctrine. I think his writings are of the utmost importance and will be of the utmost importance for the [page 690] next 2,000 years.
So they are of vital importance for the A.'.A.'., but they belong to the OTO. And they cannot belong to the A.'.A.'.
Q. And do I understand that the reason that they're of vital importance is because they speak to the spiritual teachings that the A.'.A.'. deals with?
A. They expound on the method of training that Mr. Crowley derived which he incorporated in his correspondence. They expounded on it.
His letters are of the utmost value to people who have the training, of course.
Q. Did Mr. Crowley believe that writing and publishing was an important way of expressing the doctrine?
A. Yes, as a matter of fact, he stated that the greatest magicians of recent times had used books as tools to perform their miracles.
Q. I don't think I asked if you had become a member of the Order of Thelema?
A. At the time, no. I was still a probationer in A.'.A.'.
Q. Have you since then become a member of the Order of Thelema?
A. Well, I reached Neophyte, I believe in late 1960. I don't have my diaries here. And I reached -- then I [page 691] came back -- I went back to Brazil and I reached that later in Brazil just a few months before Mr. Germer's death.
And when he sent me the text of the Order of Thelemite and he sent me another copy of emblems and mode reviews. And when I wrote him a letter telling that I already had that, he replied in another letter that he was bad, that he had forgotten that he had given it to me.
Q. Are the rituals and other -- I'm not quite sure how to say this. But are the accoutrements of the Ninth Degree secret or, at least, are they supposed to be secret?
A. Naturally. They are about the only thing about the OTO that is still secret or relatively so.
Q. And are you aware of any efforts to make those secrets public before the book "The Secrets of the OTO" was published in 1973, I believe?
A. Excuse me, sir. Are you asking me about the Ninth Degree or all the rituals of the OTO?
Q. What I'm asking you is: Did anybody actually publish any of the rituals before the book in 1973?
A. No, never.
Q. Now, did you exchange some correspondence with Mr. Germer about the Ninth Degree secret? [page 692]
A. A few times, yes.
May I ask something?
Q. Wait till I ask you.
A. I'm sorry.
Q. Let me direct you attention to Defendants' Exhibit 23, in the yellow-lined portion in the third paragraph on the first page.
Could you read the entire sentence that that yellow material appears in?
A. "Birth in he will is focused
on a child on a higher plane
that physical birth cannot
result."
Q. That's fine, thank you.
Now, is that Ninth Degree paper that is mentioned there something that is part of the secret portion of the Ninth Degree?
A. That is the emblem and mode of use.
Q. So it's supposed to be kept secret?
A. Definitely.
Q. And did you have that with when you wrote that letter?
A. Yes. May I see it, the date of the letter?
THE COURT: February 23, 1957.
BY MR. MITTEL: [page 693]
Q. Now, let me show you Defendants' Exhibit 34 which is a letter from you to Mr. Germer dated August 24th, 1959. And let me ask you to read the yellow highlighted portion in paragraph sub-B on page 1.
MR. MacKENZIE: Your Honor, there is an objection to that on the hearsay matter, partly reading from his own testimony for his own correspondence.
MR. MITTEL: If Your Honor wishes I can ask the witness what he said in the letter, and he can then say.
I'm not going to offer the letter itself because I recognize that the letter is hearsay. But I think it's important that the portion of the letter that is mentioned there by in the record. And that's why I'm having him read them.
THE COURT: Well, that is signed by Mr. Motta?
MR. MITTEL: Right. The hearsay problem is, as I understand the rule with the witness' own document, is that if all you do is offer the document, the author of the document can read the document from the witness stand and he can be cross-examined.
THE COURT: I think that's right.
BY MR. MITTEL:
Q. All right. Mr. Motta, would you read the portion [page 694] of the letter that I've asked you to read, please?
A. "Is the secret of the Ninth
really all powerful as it is
supposed to be?"
Q. And now let me ask you to read from Defendants' 35 which is a letter from Mr. Germer to yourself dated August 28th, 1959, the entire first paragraph. And then the yellow highlighted portion in the second paragraph, if you will, please?
A. "Your significant letter of
August 24th reminds me of
similar reactions I expressed
to A.C. many, many years ago.
He never reacted.
"I will only make a few observations."
B, yeah. "Why don't you make you
own carefully recorded experiments?"
Q. Now, going back to Exhibit 34 for a moment.
In that letter had you asked him to -- had you ask Mr. Germer, I should say, a series of questions relating to various Thelemic matters, let's say?
A. Yes, I have.
Q. And when Mr. Germer answers on August 28th in Exhibit 35, is he responding in that second paragraph though to those specific questions insofar as you can [page 695] tell?
A. Yes, but he answered on the ones that he might -- he might as well answer.
Q. In the letter that you wrote to Mr. Germer, where you asked him those questions, were you asking him questions about Ninth Degree material that was supposed to be kept secret?
A. I'm sorry. I was dwelling on my stupidity.
Would you please repeat?
Q. You mean you weren't paying attention?
A. I was thinking about those idiotic letters and questions.
Q. What I asked you was: Did the questions that you addressed to Mr. Germer in the first of those two letters that we were just looking at arise from some secret portion of the Ninth Degree ritual or some other Ninth Degree secret?
A. The Ninth Degree has no rituals in this sense. It only has its documents and its papers and an explanation is added if needed.
The rest is used and studied and practiced.
Q. Would someone who was not a member of the Ninth Degree have written that kind of letter and asked those kinds of questions?
A. A person may ask why it was, as I said there. Or [page 696] anybody would have asked that.
But for him to answer, "Why don't you make your own experiments," I would have to have the paper.
Q. Now, let me show you Defendants' Exhibit 26 which is a letter from Mr. Germer to yourself dated September 20th, 1957.
Let me ask you to read the highlighted portion at the top of the second page, please?
A. "First, the OTO doesn't interest
me too much. Mine is only the A.'.A.'.
And I must have told you A.C. wanted
me to set up an entirely different
system" --
Q. Who is A.C.?
A. Aleister Crowley.
Q. What is the San Graal?
A. The San Graal has nothing to do with Thelemic religion, Thelemic matters.
Those things, as long as the species exist, they will exist.
Q. But tell us is San Graal part of the training towards San Graal right now?
A. Yes.
Q. You said earlier that you were in the early 1950s writing letters with Mr. Germer on the basis of perhaps [page 697] once a month.
Did that continue throughout your --
A. Oh, yes.
Q. And did it continue when you went back to Brazil?
A. Until he died.
Q. Generally, what was the subject matter of those letters?
A. Me.
Q. You mean "you."
A. My interests, my aspirations, my duties.
MR. MITTEL: That seems to me to be the place to stop.
THE COURT: Then let's take a recess until 1:00 o'clock.
You may step down, Mr. Motta.
(Whereupon, the luncheon recess was taken from 12:00 p.m. until 1:00 p.m.)
[page 698]
Thursday, May 16, 1985 1:00 p.m.
FOURTH DAY - AFTERNOON SESSION
THE COURT: We're ready to proceed with Mr. Motta's testimony.
MR. MacKENZIE: First of all, Your Honor, we have three categories of documents that have been admitted, either by agreement or by your ruling, about which there was some questions. Documents that can still remain and documents which have been withdrawn.
Let me first tell you about the documents that are being withdrawn. They're all Plaintiffs' Exhibits. There's NO. 3, 46, 47, 48, 58, 60, 61, 62 -- I'm sorry, Bob, it's 56. I have down 58.
Yes. 52, 58, 60, 61, 62, 63, 64, 90, 92, 95, 97, 101, and 118.
The documents about which there was some question that are admitted are first of all Plaintiffs' 11 which is a limited admission to show notice.
53, 73, 75, 79 which is also limited, although we weren't certain from our notes to what purpose.
117 with the stipulation of counsel that that document was to be found in the same place as Plaintiffs' 116. [page 699]
121 to which there's also limited admission and finally 130.
Defendants' 19, 39-A, 37 and 70-A are also admitted.
Then this disputed status, Plaintiffs' 6, 83, 84, 85, 86, 101 and 120.
THE COURT: Okay.
MR. MacKENZIE: That's everything.
THE COURT: Okay. None of the Defendants' are disputed.
You want to deal with Mr. McMurtry?
MR. MITTEL: Your Honor, should we address the problem of those documents that are disputed?
THE COURT: I don't think you need to. Let me take a look at those disputed documents and then I'll deal with them.
MR. MITTEL: Okay.
THE COURT: By admission or denial.
MR. MacKENZIE: I have been informed at the break that Mr. McMurtry had to be hospitalized. I don't expect him back this week. I don't know when he'll be capable of this. His condition is rather serious.
I would just as well continue with this trial to its termination.
THE COURT: Now, you are relating to the [page 700] Court that Mr. McMurtry will not be able to come back in a reasonable number of days. It looks like his illness will go far beyond this week?
MR. MacKENZIE: I believe so.
THE COURT: First of all, do you accept plaintiffs' representation of Mr. McMurtry's health?
MR. MITTEL: I do.
THE COURT: You don't require a doctor's certificate or anything?
MR. MITTEL: Not unless talking with Mr. MacKenzie at the end of the day. And at the end of today, I'm going to have to do at least some double checking. I won't do that.
THE COURT: No. You have Mr. McMurtry's deposition.
MR. MITTEL: I took Mr. McMurtry's deposition in 1983. And, obviously, touched at least all of the issues raised by the Plaintiffs.
THE COURT: What about the issues raised in your counter --
MR. MITTEL: I was using it or anticipated using it at least for impeachment purposes.
THE COURT: Now, wait a minute. The deposition taken in this case?
MR. MITTEL: Both cases -- [page 701]
THE COURT: Yes.
MR. MITTEL: -- focused on the dispute, to wit, Mr. McMurtry and Mr. Motta, as the Outer Head of the Ordo Templi Orientis. About every other issue, I think, that's a fair representation.
THE COURT: Okay.
MR. MITTEL: My preference would be to have this trial continued until Mr. McMurtry is available to testify, and to have the plaintiffs pay for the expense of my coming back out here for the day to finish my cross-examination.
MR. MacKENZIE: May I address that, Your Honor?
THE COURT: Yes, sir.
MR. MacKENZIE: I think what you're really talking about is the copyright infringement. I don't think that Mr. McMurtry will add anything that the others can't say as far as invasion of privacy. I think his testimony is somewhat relevant on that point.
But I would ask Mr. Mittel to make an offer of proof that any of these claims fall within the Statute of Limitations. I don't think that they do.
And if he cannot establish that, I don't think this would even necessitate Mr. McMurtry's testimony.
THE COURT: Just a second. Well, under [page 702] the rules, a deposition of a witness the parties may use for any purpose if the witness is unable to attend or testify because of illness or infirmity.
Based upon representation of counsel for the plaintiffs, I'm finding that Mr. McMurtry is unable to testify because of illness and infirmity.
That means that the defendants' counsel may use the depositions which were taken of Mr. McMurtry only for impeachment, but only in his case in chief.
And I'm going to proceed with the trial in that way. We'll proceed with the case and proceed by use of Mr. McMurtry's deposition.
MR. MITTEL: Do you want me to show where there might be instances of prejudice, or may I do that in post-trial argument? How do you wish me to dispose of that?
THE COURT: First of all, I think what you got to do is go through the testimony and mark passages that you want me to read.
MR. MITTEL: Right.
THE COURT: I don't think there's any point in our sitting here and just reading it into the record. Just mark the passages you want me to read.
In the course of doing that, then you can identify for me areas in which you think there is [page 703] prejudice in not being able to examine Mr. McMurtry.
THE COURT: Now, Mr. Motta, you are still under oath from this morning's testimony.
THE WITNESS: Yes, sir.
MARCELO RAMOS MOTTA,
having previously affirmed, resumed the stand and testified further as follows:
DIRECT EXAMINATION (Resumed)
BY MR. MITTEL:
Q. Now, Mr. Motta, I think I had asked you if at some point your relationship with Mr. Germer expanded from the purely teaching relationship to that of being involved in some public relationship with him.
A. I had wanted to help him publish for several years, but I did not make enough money to help him in any way. When I went back to Brazil I went because my mother had died.
And she had left me an inheritance which I had some trouble getting from my relatives. I had to sue them.
When we reached an agreement and I had some money available, I wrote Mr. Germer at once and asked him which book he wanted to publish.
He had said to me that he wanted to publish "The Velvet Chain." [page 704]
But at this time he changed his mind and decided he wanted to publish "Liber Al" {SIC sb. "Liber AL" -def; sb. "Liber Aleph" -pla}. He had been trying to publish this for quite some time.
THE COURT: Sir, what is the time period we're in?
THE WITNESS: As you know, Your Honor, I do not have my diaries with me, but it must have been between 1960 and 1961. It took quite some time to get the book.
BY MR. MITTEL:
Q. This was right after you went back to Brazil that this is starting to Happen?
A. That's right. So it must have been 1961. I'm terrible with dates.
But since I was going -- because of the inheritance, I had already suggested to him that I might do it beforehand.
Q. All right. Now, as a result of the inheritance did you send some money to Mr. Germer for publication of "Liber Al" {SIC sb. "Liber AL" -def; sb. "Liber Aleph" -pla}?
A. I was not very good with money. As a matter of fact, I still am not. So when I got the money, the first payment from the inheritance, I sent him a thousand dollars besides the money that I normally sent him when he asked me for it. [page 705]
Ans asked him to keep that so we could use it as a payment. I had enough money in Brazil to start the book going. But I did not want the rest of the money to be in my hands.
Q. What was your responsibility in terms of publishing the book?
A. I had no experience whatsoever, but I was in charge of the -- he let me choose the layout, of course, with his suggestions.
For instance, the cover of the book, I had already paid an artist for the cover of the book.
And I sent him the proposed cover, and he said, "No," that he wanted a cover made by Lady Freda Harris to be used. He sent me a painting that Lady Freda harris had done. It's still there in Brazil.
That was used for the cover of the book. The artist had already been paid. So he didn't mind it too much.
Q. What else did you do?
A. I contracted the printing; I supervised the proofreading, which was terrible, because the printer did not know English at all. He just went -- he just copied letter-for-letter the text.
And I chose the paper which was the best we could get at the time. I was, of course, had. But [page 706] since I did not know anything about printing at the time, I did what I could.
A. And as this process went on were you back and forth in communication with Mr. Germer about it?
A. All the time. He wanted to see everything and to give his opinion and, if necessary, his veto on everything.
Q. And at some point, were there occasions when either you got angry at him or he got angry with you?
A. Well, he got angry at me quite -- he was extremely nervous. He had been under surveillance, very unfair surveillance, of the FBI for many years because Mr. Hoover had information that he was a Nazi, a black magician, a very unsavorable character.
And he was very seriously afraid that the book would not get published at all, and that I would be too weak and that I would fall along the way.
So he often was extremely nervous, and his letters were often extremely irritated.
Q. Let me show you Plaintiffs' Exhibit 135, which was discussed yesterday, which is a letter from Mr. Germer to you of December 23rd, 1961. Was that letter written while this publication effort was ongoing?
A. Yes. I had just made editorial suggestions that he did not approve of, but -- well, perhaps because I was [page 707] five years older than Mr. Starr I was able to take the --
Q. Now, after -- let me show you what's been marked for identification as Defendants' Exhibit 42-A, which, Your Honor, is a new exhibit.
Do you see that letter?
A. Yes, sir.
Q. Is that a letter that Mr. Germer sent to you?
A. Yes, sir.
Q. And could you read the date, please?
A. December 25, 1961.
Q. In this letter does he refer to you as an idiot?
A. No, he had bought some advanced copies of the book, and he was extremely relieved about it.
MR. MITTEL: Defendants offer --
THE WITNESS: So was I.
MR. MITTEL: Defendants offer Exhibit 42-A.
THE COURT: May be admitted.
(Whereupon, Defendants' Exhibit 42-A was admitted into evidence.)
BY MR. MITTEL:
Q. Now, let me show you a document that had been marked Defendants' Exhibit 43-A. This is also a new exhibit, Your Honor.
Could you tell me what that is and what the [page 708] date is?
A. This is a letter from Mr. Karl Germer --
MR. MacKENZIE: Objection, Your Honor.
I think Plaintiff -- the witness lacks foundation. This is an unsigned document. I don't know who he can determine that.
MR. MITTEL: I will ask him that.
THE COURT: Well, establish the foundation.
BY MR. MITTEL:
Q. Just tell us who you think it's from and to and the date first, please?
A. This is a letter from Mr. Karl Germer to Ms. Estelkle Robb of the norman Robb Bookshop in Melbourne, Australia, written on February 15, 1963.
Q. What makes you think that's a letter from Mr. Germer?
A. He sent me a copy of this letter along with a letter of his to me talking about -- he wanted me to buy those books.
Q. At the top of the letter, does Mr. Germer's name and address appear?
A. Yes.
Q. Would you read those into the record, please?
A. "Box 173, West Point, California." [page 709]
Q. And would you read into the record also the P.S. in the letter?
A. "P.S. It will interest you that we have
published "Liber Aleph" by the late Aleister
Crowley. It is a beautiful volume with a
wrapper designed, with a wrapper designed by
Freda Harris, who designed the "Book of
Thought" {SIC sb. "Thoth" -pla -def} cards.
"Can you sell some of these books in
Australia? Mr. Motta is co-editor. The
books are printed in Brazil and could
be shipped direct to you.
"I will ask Mr. Motta to send a copy
direct to you by ordinary mail. The
price has not been definitely set,
it will be between $5 and $6 less 40
percent to the trade."
MR. MITTEL: Defendants offer Exhibit 43-A.
THE COURT: It may be admitted.
(Whereupon Defendants' Exhibit 43-A was admitted into evidence.)
BY MR. MITTEL:
Q. Now, since you worked on "Liber Aleph," have you worked on other books about Thelemic matters?
A. Since then. [page 710]
Q. Yes, sir.
A. Well, he was about to publish with a young student of his the "Book of Lies" commented by Crowley. And he asked me to write an introduction for the book.
He did not like the introduction very much, and he scratched it.
Q. Did you work on any other books with Mr. Germer?
A. I was with, his permission, and I was writing preparing a book in Portuguese about Thelema.
And I translated several of Crowley's shorter works to be included in the book, including "Liber Aleph." And I sent him a copy of the book.
He said, he thanked me for sending it, but he did not know what I had said. So he did know if he liked the book or not.
So I translated the text that I had written into English and sent it to him. I do not remember that he scolded me on it.
Q. Did you end up publishing that work or other works in Portuguese?
A. I published that work at the time. It was in 1962 or '63. I'm sure, of course, it was before his death. The book was extremely critical for the communists.
And 1964, after the military coup, I had the book destroyed, because I did not want to be associated [page 711] with the kind of regime that I knew was coming.
Q. Did you prepare any other works in Portuguese in Brazil?
A. I translated all the main instructions of the A.'.A.'. which might be necessary to a probationer. I translated the "Liber Aleph"; I translated the "Equinox of the Gods."
And I translated the "Commentaries of Aleph." {SIC sb. "of AL" -def -pla}
And I translated Book 4, Part 1; Book 4, Part 2; Book 4, Part 3; and, of course, Book 4, Part 1, which, of course, is the "Equinox of the Gods." This was over a period of several years.
And these books circulated under typewritten form until I could start putting them into print which I couldn't do until I had some money.
Q. Now, while you were doing all this, what were you doing to make some money?
A. I was in a military high school in Brazil --
Q. No, no, we're after high school now. We're talking --
A. Well, I'm trying to explain what I was doing. I lost everything with the 1964 coup, because I would not cooperate with the regime that came on.
I was well-known because I had been to [page 712] military high school. And my ex-classmates by then were first lieutenants or captains.
Many people were summarily killed in those days. They were flown over the Atlantic and dropped in the ocean. I was told I was not because it was known I was not a communist.
But I was not allowed to make money or to work in a managerial position at all. I tried what I was doing what I had done most in the United States which was writing teleplays.
My originals were systemically refused. And I was given adaptations of works of the last century. And those adaptations were severely screened before then were accepted.
And I was paid about one-fifth what other writers were paid.
I sold about 20 teleplays this way. And after about a few years, I felt so frustrated by the possibility of saying anything of any social significance whatsoever that I stopped the writing.
I got out of it and did the other thing that I could more or less do.
I started teaching English. Mr accent is not perfect, but at least it in part was not too bad.
Q. And did you continue to teach English until you [page 713] left Brazil in 1981, I believe it is?
A. Yes. That was the only thing I could do.
Q. What were you making in terms of American dollars by the time you left Brazil for teaching English?
A. I was making $300 a month. It's probably much less now because of the --
Q. How long for this period of time were you able to only prepare translations in typed script?
A. Well, when the so-called democratic revolution came, I had a very good typewriter that I had bought on Mr. Germers's advice. That I kept. It was one of the few things that I kept. And that was how I prepared my translations.
Q. For how many years did you do that?
A. I beg your pardon?
Q. For how many years did you just type your translations?
A. From 1963 to 1975.
Q. And at that point were you able to start actually publishing books again?
A. Yes.
Q. Had you done that at all before 1975 came?
A. No, I couldn't.
Q. All right. So in 1975, what did you do about actually publishing a book. [page 714]
A. Well, i had some students by then, and they contributed some money for the printing.
And we printed the "Equinox of the Gods" in Portuguese with notes by me.
Q. And when you say "students," do you means students of Thelema or do you mean students you were teaching English?
A. Oh, no, I mean students of Thelema. I had an OTO Lodge established at that time.
Q. When did you establish that OTO Lodge?
A. It was very slowly done. As usual members kept shifting. Some came in and then dropped and others -- it's hard to say.
Would you repeat the question please?
Q. When did you establish the OTO Lodge in Brazil?
A. It was, I'm sure, a few months before the Society was registered and the statutes were registered legally in Brazil. I do not remember the exact date.
Q. Sometime in the 1970s?
A. Oh, certainly. It must have been a little before Mr. Wasserman cam visiting.
Q. And when did he come to visit you?
A. I don't remember; I'm sorry.
Q. Now, could you explain a little bit about the relationship between the teacher and the pupil, and [page 715] particularly how you believe that relationship should work?
A. Are you talking about teaching English?
Q. No, no. I'm talking about Thelemic teaching.
A. In the OTO, the A.'.A.'., the Order of Thelema?
Q. In the A.'.A.'.
A. Well, it's actually simple because the tasks and the oaths of the grades are clearly defined. Teachers differ in temperament. And the way they react with student varies a lot. the way they test the student varies a lot, also.
But it's basically simple. It the student will do, will perform the task of the grade and kept the oath, the theory is that the student will be able to pass into another grade.
Now, the teacher's business is to try to help the student along without pampering the student too much.
And at times the instructor has to tell the student some unpleasant truths or what the instructor things are unpleasant truths.
Q. Unpleasant truths about the student?
A. Yes. Or about life in general. Those are also very painful.
Q. And what -- well, let me ask you a little more [page 716] specifically. Have any of the people who've appeared so far in this trial ever been your students?
A. Yes, Mr. Wasserman and mr. Starr were my students.
Q. And have there been occasions when you had to tell them unpleasant truths, as you put it, about either themselves or about life?
A. All right. I see what you're asking. Without any reflection on either of those two gentlemen, speaking generally.
The problem with their vocations in which order to progress, you have to make certain admissions about yourself, which I extremely think -- there are two possible -- there are actually possible reactions to those occasions. They happen in every grade. As a matter of fact, they often antecede the initiation of that grade.
If the student accepts those painful facts about either himself or herself or about the universe, it causes great personal pain, the birth pangs of that particular initiation. And one passes on.
If a student refuses to face or accept that particular situation or that particular point, there are two possibilities which depends on the grade, on the intensity of aspiration of the student.
One case in point is Mr. James in Uganda. He [page 717] could not pass through a certain practice that I had given him to do. He did not -- he was afraid. We all are.
And he abandoned the Order. But he is, so far as I know, a very -- a gentleman. And he has stayed away and he's gone back to the world and all has been forgotten. It's all a dream. It's something that happened. A memory.
If a student has a higher degree of aspiration and fails, quite often a period of great personal turbulence issues in which the student behaves in a manner in which that student would not have behaved before he or she tried to join the order. This period may last years. And in some case irreversible.
The Court has seen the last two or three days several examples of Thelemic failure here. The Court has not unfortunately had a chance to see any of our successes.
Q. Well, when you say "examples of Thelemic failure," what do you mean?
A. I mean people who failed to keep their oath and as a result started behaving dishonorably by simple normal social codes of conduct.
Q. And to which of the witnesses are you referring?
A. I am referring to Mr. McMurtry, to Mr. {SIC sb. "Mrs." --weh} Helen [page 718] Parsons Smith in a smaller degree, to Mrs. -- or Ms. Phyllis Wade in a very high degree; and to Mr. Wasserman and Mr. Starr to a certain extent.
Q. What failings can -- or how do you -- what makes you say that mr. McMurtry failed to respond favorably to the process?
A. The first time I met Mr. McMurtry he -- there was still a flame in him.
Q. A flame?
A. It's a way of speaking. He was still alive inside, spiritually. there was still a momentum in him. He was very disturbed, because he was a very proud person. And he did not want to accept Mr. Germer's authority.
I tried to point out to him that he was living in the past. That Crowley was dead. And that Mr. Germer was alive.
I remember that he thought -- I did not mention Mr. Germer's name. Mr. Germer was present listening to us. So was Jane Wolfe.
I remember that he thought I was trying to talk him into following me and he told me, "I'm not going to obey you." And I started to laugh. It completely floored me. The man that I was talking about was sitting right there. But he couldn't understand.
Now, since then, he has, as I stated here [page 719] before, done what children do. He had tried to keep his cake and eat it at the same time. And in the process he has tried to also eat Mr. Joseph Matson's {SIC sb. Joseph Metzger's" -def} cake and my cake and the cake of a lot of other people.
He had demanded -- he should understand this expression. He had behaved like a platoon lawyer who always applies the law in his or her favor. He had amended all the rights and has failed to fulfill any of the duties of an OTO member.
Q. Now --
A. The same goes for Mrs. Seckler and to a small extent to Mrs. Smith.
Q. There came a point, as I understand it, when you came to the conclusion that you were the Outer Head of the Ordo Templi Orientis?
A. Yes, but there is a great misunderstanding about the meaning of what the Outer Head is.
Q. Well, just, let's just wait until we get there and then I'll ask you to explain that.
First of all, are there some documents on which you rely to make your claim to be the Outer Head of the Ordo Templi Orientis?
A. Some of the documents -- one of the documents I had not been aware of to this day. One of the documents I have had for some time. [page 720]
Q. Mr. Motta, let me first of all show you a document that is marked Defendants' 48, which is a letter from Karl Germer to yourself dated October 12th, 1962.
And I'd like you to read the paragraph in the -- just about the center of the page if you would, please.
MR. MITTEL: Your Honor, we have prepared, Mr. Motta has prepared a typewritten version of each of these letters or some of these letters anyway.
There are objections to at least two of them on the grounds of authenticity as respects the typewritten version but not as respects the handwritten version.
So I will address those objections specifically when we come to the exhibits where they're involved.
Q. Could you read that paragraph in Exhibit 48, please?
THE COURT: He's reading from what, the typewritten version?
MR. MITTEL: Yes, the typewritten.
THE WITNESS: "The second letter which you have written" --
THE COURT: Pardon me. Let me get the identification of this. Is this from Mr. Germer? [page 721]
MR. MITTEL: Yes, sir.
THE WITNESS: Yes, Your Honor. But it's not Mr. Germer's handwriting. It's Mrs. Germer's handwriting.
Is that the paragraph you wanted, starting the second letter?
BY MR. MITTEL:
Q. The one where the yellow highlighting appears.
A. You want me to read that entire paragraph?
Q. Yes, sir.
A. "The second letter which you
have written has given me
more pleasure than any in
the last years. It is clear
that you are guided by the
Supreme Hyerophant. And if
you follow him loyally and
persistently to the appointed
goal, he will lead you,
provided some limitations {SIC sb. "some of the Illuminations" -def}
given, you do not influence {SIC sb. "given you" -def}
your evil gain as your peace. {SIC sb. "your Ego again as your Beast" -def}
Good luck to you~"
Q. What is the "Supreme Hyerophant"?
A. The Supreme Hyerophant is the Lord of the Young {SIC sb. "Aeon -def}, [page 722] who is called the Crowned and Conquering Child of Heru-ra-ha.
Q. And of what importance in Thelemic is the Supreme Hyerophant?
A. Well, to use the normal parlance, he is God. There's supposed to be a Goddess.
Q. Now, let me show you Defendants' Exhibit 49 which is a letter to yourself --
MR. MacKENZIE: Your Honor, I'd like to object on that last exhibit insofar as the one Mrs. Germer wrote. If nothing else it's hearsay.
Secondly, I think on a credibility basis she was not a member of the OTO. And I don't think it's ever been established that she had any kind of intricate knowledge on this subject.
MR. MITTEL: Your Honor, first of all, let me say that this is -- there's no indication on this stipulation that there's any objection on any grounds to Exhibit 48.
MR. MacKENZIE: I shouldn't let that stop you. You objected to one of mine this morning that you had --
MR. MITTEL: No, I know.
THE COURT: What year is this?
MR. MITTEL: This is October 12th, 1962. So if I may, I will address first of all the author of [page 723] the letter. May I do that?
THE COURT: Yes. Is this supposed to be Mr. Germer?
MR. MITTEL: This is Mr. Germer.
THE COURT: Ans she was acting as his scribner?
MR. MITTEL: That's going to be our contention.
BY MR. MITTEL:
Q. Would you address your attention to the bottom of the page that's handwritten.
Whose signature appears at the bottom of that page?
A. The signature is Karl's, but it was written by Mrs. Germer.
Q. And how do you know it was written by Mrs. Germer.
A. She wrote me several letters and I am familiar with her handwriting.
Q. And are you also familiar with Mr. Germer;s signature?
A. Oh, yes.
Q. Now will you also read --
MR. MacKENZIE: Your Honor, may I interpose an objection.
If you look at Defendants' 47 signed by Karl [page 724] Germer, It's an entirely different signature.
MR. MITTEL: Let me finish with the authentification questions if I may, Your Honor?
THE COURT: Go ahead.
BY MR. MITTEL:
Q. Would you now read the first paragraph of the letter, please?
A. "Dear Marcelo, you were right.
I was in the hospital for three
weeks. And instead of a single
operation, the prostate gland
had to be taken out, because a
tumor was discovered. I am
now very weak, have to remain
in bed for three or four weeks,
and have great pain."
THE COURT: Well, I'm going to admit the document, Defendants' 48, into evidence. I believe the objection is called to my attention by the plaintiffs.
I really want to go through matters of weight rather than through matters of authenticity.
(Whereupon, Defendants' Exhibit 48 was admitted into evidence.)
BY MR. MITTEL:
Q. Now, let me show to you a letter from Mrs. Germer [page 725] dated October 30th, 1962.
And let me first ask you to describe to the Court how you prepared the typewritten version which is attached to the handwritten version of the exhibit.
A. I believe, Mr. Mittel, that typewritten version was prepared for me by someone else.
Q. Whom?
A. To the best of my recollection it was Mr. Ellis who did it in England because I wanted him to have the letters authenticated by Mr. Gerald Yorke. But I'm not sure, it my {SIC sb. "might" --def} have been done by another of my students.
Q. Having said that, read the highlighted material at the very top of the first page, I guess, it's the third paragraph.
A. "You are the Follower," Follower with a capital F. "Please take it from me, as he died in my arms and it was his last wish," and it was his last which is underlined.
MR. MacKENZIE: Objection, Your Honor.
THE COURT: It's not underlined on the original handwritten version.
MR. MacKENZIE: Another problem is that Sascha Germer is capitalizing a lot of her nouns.
THE COURT: I don't understand all of that. [page 726]
MR. MacKENZIE: It's not on the copy.
THE COURT: Well, I read from the handwritten version Exhibit 49.
MR. MacKENZIE: Well, I only mean to point out, Your Honor, that the typewritten version does not capitalize all those.
THE COURT: That's fine. But what he's reading into the record is accurate except when he made reference to underlining, because that underlining doesn't appear in the original version.
BY MR. MITTEL:
Q. Please continue.
A. "Who the heir of the library is, I do not know up to now."
MR. MacKENZIE: Your Honor, I have another objection that I had previously talked to Mr. Mittel about. And it's really hearsay in two matters.
No. 1, Sascha Germer reporting what it was that karl Germer told her and then Mr. Motta in turn repeating what Sascha Germer stated. It's a hearsay within a hearsay.
MR. MITTEL: May I address that, Your Honor.
THE COURT: No, you needn't bother. I don't think it's hearsay. If so, it's admissible under [page 727] and exception. I'm going to admit Exhibit 49.
(Whereupon, Defendants' Exhibit 49 was admitted into evidence.)
BY MR. MITTEL:
Q. Now, Mr. Motta, let me give you Defendants' Exhibit 51 which is a letter to you from Mrs. Germer, dated January 26th, 1963.
MR. MITTEL: Again, Your honor, there is an authenticity objection to the type written version.
BY MR. MITTEL:
Q. Mr. Motta, let me ask you to read the two paragraphs that i've marked that appear at the top of page 2 of the handwritten version.
A. Excuse me, I want to see the underlining as it is here . Thank you.
"You still have been the last
'Great Joy' in his oh, so
trying days. There are hundreds
of things I would like to ask
you, only for 'Thelema,' only
for the work, only for the
future of Thelema.
"When I am gone or not available
you can see what happened, I
never am sick, suddenly I was [page 728]
operated. But forget about me,
you are young, you are the
future of the work, I did not
believe when Karl said, 'It
takes another ten years to make
Motta the heir!'
"But spiritually," underline,
"you are his heir! You have
to work on in Brazil. If you
are stubborn. You are not
stubborn to me, you fight the
work! Fight with Ra-hoor-khuit!"
MR. MITTEL: Defendants offer Defendants' 51, Your Honor.
THE COURT: It may be admitted into evidence.
(Whereupon, the Defendants' Exhibit 51 was admitted into evidence.)
BY MR. MITTEL:
Q. Now Mr. Motta, let me show you Defendants' 53 which is letter to you from Mrs. Germer, dated january 1965.
MR. MITTEL: And let me, just so the record is clear, Your Honor, read to you what appears at the very top of this document. It says -- [page 729]
THE COURT: What is the exhibit number?
MR. MITTEL: 53.
"Copy of a letter. Document
is in the hands of Frater,"
I believe it says, "Paragranus."
"Copy of a letter written to
Marcelo Ramos Motta."
BY MR. MITTEL:
Q. Now, Mr. Motta, let me ask you a couple of question about that letter after you've taken a look at it.
All right.
A. I haven't finished.
Q. I'm sorry.
A. I have never seen this before. It never reached me.
Correction, sir. I saw it before, but I didn't read it completely. I saw it in your office the day before yesterday.
Q. Now, first of all, at the top of this letter there's a mention of the Frater Paragranus.
Who is that?
A. That is Joseph Metzger from Switzerland.
Q. And who is he?
A. He was under Mr. Germer. He was the National King. [page 730]
Q. Could you now read the paragraph that I've marked with the yellow at the bottom of the first page, please?
A. Starting at "As you mentioned"?
Q. Yes, sir.
A. "As you mentioned my name in
the letter, I take the liberty
to tell you that Saturnus has
made him in 1961 the only
Follower to be Crown of the Order.
"Hoping that this information
will satisfy you I remain with
93 93-93."
It's a Thelemic reading {SIC sb. "a Thelemic greeting" -def}.
"Sascha."
Q. Thank you.
What is "Liber Al" or "Liber Al" {SIC sb. "AL" in place of "Al" -def}?
A. That is the "Book of Law".
Q. Can you tell the Court about its significance in Thelemic matters?
A. Well, Crowley stated that he received the "Book of Law" from his spiritual entity who dictated this. Nobody has to believe that unless they want to. I believe it.
It's the central canon of epic law of the, according to our position, of the present eon. [page 731]
It is supposed to be the spiritual law ruling the evolution of the species for the next, maybe 2,000 years.
Q. Let me now show you Defendants' Exhibit 2, which I represent to the Court is a portion of this book "Liber Al." {SIC sb. "Liber AL" -def}
And let me ask you, first of all, to explain to the Court what the excerpt is, where it appears in the book.
A. This is, the book is divided into three chapters and it's most important that the three chapters complement each other. They have no meaning without each other.
It is from the second chapter, verse 76.
Q. Would you now read that verse to the Court?
A. The yellow line?
Q. The yellow part, yes.
A. "There cometh one to follow
thee, he shall expound it.
But remember, oh chosen one,
to be me; to follow the love
of New in the star-lit heaven;
to look forth upon men, to
tell them this glad word."
{SIC correct text:
"AL II,76: 4 6 3 8 A B K 2 4 A L G M O R 3 Y X 24 89 R P O S T O V A L. What meaneth this, o prophet? Thou knowest not; nor shalt thou know ever. There commeth one to follow thee; he shall expound it. But remember, o chosen one, to be me; to follow the love of Nu in the star-lit heaven; to look forth upon men, to tell them this glad word." --weh; part concurrence by -def}
Q. Can you explain what this version tells us about the meaning of the term "the Follower"?
Do you need it back?
A. Oh, yes. I'm just thinking.
If I need that? Oh, no, I learned this book by heart a long time ago.
Please repeat your question. I was thinking of several different levels of things.
Q. Can you explain to us what the term or what this verse teaches us that the term "Follower" means?
A. Well, the beginning of this verse includes a riddle in words and numbers.
It was Crowley's belief, and he so stated in his commentary with this verse, that it would be the proof of the authenticity of someone who'd come in the future to follow him and be the prophet on his terms. Yeah, he shall -- it can be a woman, too. "He" may refer to the Outer Head.
Q. But it refers to someone who can be the successor of Aleister Crowley?
A. In Thelema, in the A.'.A.'., yes.
Q. Over the years, since 1962, you have made a number of different claims about whether you were or weren't the Outer Head of the Ordo Templi Orientis.
Is that a correct statement of the facts?
A. I think it's quite correct. [page 733]
Q. Can you explain to the Court why you've done that?
A. It may take some time.
Q. Well, take it in bits and pieces.
A. There were several reasons, When I received Mrs. Germer's letter referring to the Follower. I felt that what was meant by it is that I was the successor as Outer Head of the Order. But there was the possibility that the letter referred to the Follower prophesied in "AL".
I did not think I was the Follower prophesied in Al {SIC sb. "AL" -def}. I still do not. For certain reasons I think the Follower is someone who will come after me.
So there was this particular doubt which was only resolved when I saw the letter mentioning Follower to the Crown in your office the day before yesterday. The letter which I never received.
Another reason is that --
Q. Well, let me stop you right there. Why does the letter indicating that in December 1961 Mr. Germer had said that Mr. Metzger was supposed to be the Follower of the Crown.
Why does that say anything to you about who is to the OTO?
A. Because the word "Follower" is used there in the sense of successor to the Crown of the OTO. [page 734]
A. And if Mr. Germer had not later said that you were the Follower, would that mean that Metzger was the Outer Head of the Order?
MR. MacKENZIE: Objection, leading the witness.
THE COURT: I'll permit the answer.
THE WITNESS: Most certainly, yes.
BY MR. MITTEL:
Q. Now, go ahead if you would, please?
A. I'm sorry; I'm thinking.
Q. Well, you were explaining your inconsistent statements.
A. Well, is it the second?
Q. I think the second.
A. The second place, the Outer Head of the Order is supposed to be unknown, unknown to anybody except for his or her immediate representatives. That is in the constitution.
Actually the -- shall I continue?
Q. Yes, please.
A. Actually the Outer Head of the Order is just the same thing as a member of the Ninth except acting internationally instead of nationally or in a particular lodge.
His -- for instance, it's written that all [page 735] members of the Ninth are part proprietors of the property of the Order. That is meant internationally.
No member is automatically proprietor of the property of the Order. All members of the Ninth are part proprietors. They are responsible for the property. It's communal property; it belongs to all of them.
The coordination of how this property is used is in the hands of the Outer Head of the Order.
Q. All right. But remember now what i asked you was why you had made inconsistent statements.
You had told us to start with why you initially thought the Follower letter might have meant you were the Outer Head of the Order. And --
A. But I was not sure. That was one reason not to claim that grade, that I was not sure I have the right to.
Q. All right. And at some point did you, in fact, start to say that you were not the Outer Head of the Order?
A. I would have said that anyway to anybody who was not an immediate representative of mine, and to anybody whom I was not sure was a legitimate member of the Ninth Order.
Q. And did you, in fact, do that, tell people, in [page 736] other words, that you were not the Outer Head of the Order?
A. Yes. But not only for this reason, for the two preceding reasons and for an other reason which I had not given you before.
Q. And shy don't you tell us what that is?
A. Well, immediately after Mr. Germer's death, Mr. Metzger had himself elected Outer Head of the Order by his Swiss members.
By the constitution this is totally impossible. If an Outer Head of the Order dies without naming a successor, or if an Outer Head of the Order is deposed which the Order can do, the new Outer Head of the Order -- first of all, the Outer Head of the Order can only be deposed by the unanimous vote of all national kings, meaning the heads of the order in different nations where the Order exists. The have to be unanimous in order for the Outer Head of the Order to be deposed.
Second, if an outer Head of the Order is deposed, or if an Outer Head of the Order dies without naming a successor, then the new Outer Head of the Order has to be unanimously elected by the national heads.
so Mr. Germer, I'm sorry, Mr. Metzger could not be elected by his own members. He had to be elected [page 737] by representatives of the OTO.
Now, that was the first grab for the title of Outer Head of the Order, which among other things, Mr. Metzger should not have advertised as he did, because the Outer Head of the Order is supposed to remain sacred.
I did not get letters from -- that letter from Mrs. Germer thanks me for a gift that I sent her. It was $75 from the first script, television script that I had managed to sell after several years of misery. I was extremely hurt because I never heard from her thanking me for that.
Then Grant came out saying he was the Outer Head of the Order. I thought she had named him, because I knew she did not like me.
Q. Did you, at the time you corresponded with Mr. Grant, know that Mr. Germer had expelled him?
A. No.
Q. When you corresponded with Mr. Grant did you know of Aleister Crowley's will?
A. I don't think so. No, not yet -- I'm not sure.
It was about that time that Mr. Yorke sent me a copy of the will. My publishers never sent me a copy of the will until Mr. Yorke had already sent me one.
Q. And when you were corresponding with Mr. Grant, did [page 738] you know about Mr. Germer's will?
A. No.
Q. And during any of your correspondence with either Mr. Grant or Mr. Yorke, had you consulted with any type of lawyer about the disposition of the property of the Ordo Templi Orientis because of these wills and probate proceedings?
A. I think I only started this consultation after I had read both Mr. Germer's will and Crowley's will.
Q. And when would that have been?
A. I do not remember.
Q. Well, was it when you asked Mr. Wasserman to consult with copyright counsel in New York?
A. It absolutely must have been before that. It must have been before then.
Q. That you first sought out a lawyer?
A. Yes -- no, excuse me. I must have sought out a lawyer just after I first saw those wills. But they did not come to me together. I had a great trouble getting them.
And Mr. Yorke never told me that the address in Crowley's will was the address of the -- was Mr. Germer's address, until several letters, I extracted it from him. [page 739]
Q. Mr. Motta, at some point you formed the Society Ordo Templi Orientis; did you not?
A. In Brazil, yes.
Q. Why did you do that?
A. The constitution as it stands is not easily explained in terms of law. What I tried to do was create a legal document through which the order could have legal existence and proceed through all the legal forms of its existence.
I asked a person who was interested in joining the Order, and who was an attorney, to give form to this document for me. I tell him my requirements. And we worked more or less the same way Mr. Germer and I worked.
He would send me the appropriate drafts, and I would make changes and suggest additions. Sometimes it took about four or five months in arriving to a final draft.
Q. And after that was done, did you start establishing chapters or something along that line?
THE COURT: When was that done?
MR. MITTEL: Oh, I thought he had said.
THE WITNESS: I didn't --
BY MR. MITTEL:
Q. When did you do that? [page 740]
A. I didn't -- it was sometime -- it took a long period. And it was not registered immediately.
Q. Was it done in Brazil?
A. In Brazil, ion Brazil. It was -- this whole work was done between 1974 and 1976. That's --
Q. While you were in Brazil?
A. Oh, yes. My diaries are not available. The documentation probably shows when it was done.
Q. When you did that was there a lodge of the Ordo Templi Orientis already in existence in Brazil?
A. Yes.
Q. And you were running the lodge?
A. No, some had named a lodge master and the lodge was his in another town. And I was just the Supervisor General.
Q. Were there any other lodges in Brazil?
A. There had been one.
Q. Well, were there any going then other than this one?
A. No. just this one and the one that Id dissolved.
Q. Did you have any other lodges operating under your supervision anywhere else in the world in 1975?
A. No, no.
Q. Now, at some point, as I understand it, you came to the United States? [page 741]
A. Yes.
Q. And once you got here, did you begin the work of establishing a broadened membership of the Society Ordo Templi Orientis?
A. Actually, I believe I had the Society registered here before I cam to the united States.
Q. Did you begin -- can you describe for the Court the present status of the Society in terms of members and people with whom you correspond and all that?
A. At the present moment for legal purposes, as I said before, in the united States there are no members except myself.
In Brazil -- those things are -- pardon me -- those things are hard to believe unless one has some familiarity of them, like 30 or 40 years of experience. We are constantly under surveillance of intelligence services.
And this surveillance is not necessarily the best interest of the nation, but are sometimes, is sometimes the best interests of the special interest.
One of the special interests that likes us very much is the Roman Catholic Church, for several reasons.
Now, we had a lodge going with at least 30 members. [page 742]
Q. This is in Brazil.
A. In Brazil.
Q. What about in other parts of the World?
A. in other parts of the world, I had Mr. Ellis, whom I had to expel. And I had Mr. Barden in Australia.
Q. Does Mr. Barden supervise a lodge in Australia?
A. Mr. Barden is the Director, my Director, of the OTO in Australia. You see, as long as there are not many lodges, one director is sufficient.
If there are many lodges, directors have to be subdivided according to the states of the countries according to the number of lodges that one director may efficiently take care of.
Now, this is simply an extension of the system of a National Grand Master General which is the same thing as a Holy King or Novelty Queen {SIC sb. "Holy Queen" -def} and Grand Masters, Masters of Lodge, so forth and so on.
It's simply a translation in terms legally more, legally less fantastic.
Q. In other words, what you are saying if I understand you is that the structure of the Society Ordo Templi Orientis is similar to the structure of the Ordo Templi Orientis as outlined in the Constitution in the "Blue Equinox"?
A. That is my contention. But -- [page 743]
Q. Now, in addition to he lodges and members that you got, you also have a number of people with whom you correspond about the Society Ordo Templi Orientis?
A. Yes.
Q. And how many of them are there?
A. I do not know by heart. We have a computer list. But the people who are interested in the OTO and write saying that they want to join are asked -- are put on hold and notified that as soon as in the place where they live there are five available members -- because it takes five members to initiate.
As soon as there are five available members they can join. They do not have to pay dues or anything because they are not members at all. They are just put on hold.
Now, there are -- all the time there are people who write and say they want to join. they are put on hold. And once in awhile I write and feel them out.
Q. What's the result of that feeling out process? What has been the result?
A. The result has been that very few people are considered at all. Because you see, in the OTO seniority has always been traditionally very important.
If there are two lodge masters of the same [page 744] grade, the one who has been a lodge master for a longer time has preference over the other for certain works.
So what happens is this: If someone writes me somewhere and wants to form a lodge, when there are five available candidates in that region, the person who wrote me first is going to be the lodge master, be it a man or a woman.
And the experience of the last 45 years has shown that unless -- intelligence is not important in the OTO surprising as it may sound. Character is the main thing.
The person has to have character, has to have moral endurance, has to be able to put up with stress.
Because there will be stress; there will be surveillance; there will be entrapment; there has always been.
And very few people qualify, very few people.
Q. How many people do you have on your mailing list with whom you are in correspondence?
A. About 700.
Q. And how often do you communicate with them?
A. As seldom as possible. But then they write one has to answer.
Q. Do you have regular mailings that go out to those people on the mailing list? [page 745]
A. Yes, when we're putting out a book.
Q. And you announce the publication of the book?
A. Yes.
Q. Is Mr. McMurtry a member of the Society Ordo Templi Orientis?
A. He could have been.
Q. But he's not?
A. Not now.
Q. Is he a member of the Ordo Templi Orientis?
A. No.
Q. And why not?
A. I had been forced to expel him for conduct unbecomming.
THE COURT: We'll take a short break, now.
(Brief recess taken.)
THE COURT: All right, proceed.
BY MR. MITTEL:
Q. Mr. Motta, let me show you Defendants' Exhibit 77. Can you tell us when that was first published?
A. It should have the copyright notice in it, 1981.
Q. And that is the date that this document was first promulgated?
THE COURT: What exhibit?
MR. MITTEL: Defendants' 77, Your Honor.
THE WITNESS: Yes. [page 746]
BY MR. MITTEL:
Q. And is 1981 the date that it was first promulgated?
A. No, it had existence in the United States.
Q. Yes.
A. Well, it had existed in typewritten before then. Since between 1978 and 1981.
Q. But as a printed Constitution?
A. No, no, as a printed Constitution that was when it was published.
Q. 1981.
A. 1981.
MR. MITTEL: Defendants offer Exhibit 77, Your Honor.
THE COURT: It may be admitted.
(Whereupon, Defendants' Exhibit 77 was admitted into evidence.)
BY MR. MITTEL:
Q. Now, Mr. Motta, why did you determine to come to the United States and establish the Society Ordo Templi Orientis here?
A. I had asked Mr. McMurtry and I had also asked Mr. Seckler. I'm not sure if I asked Ms. Smith, excuse me, Mrs. Smith, for any evidence that they had been chartered to work lodges of the OTO by Mr. Germer or any evidence, written evidence, that the letters of [page 747] authority that Mr. McMurtry had been sanctioned by Mr. Germer or Mrs. Germer as his appointed executor.
I don't remember the exact date, but I think it us for five years that I did not get any answer on that. I came to the conclusion that they did not have charters to work with the OTO in the United States.
Their behavior had shown that they were not behaving as members of the OTO should have behaved. So I thought it was necessary that I start working here, which I wouldn't have done otherwise.
Q. Let me show you Defendants' 9 and ask you if you recognize the signature at the bottom of that exhibit?
A. That was one of the ways Crowley sometimes signed his letters, 666.
Q. And at the top right-hand portion of the letter, there's an address. Is that one of the places where Aleister Crowley lived?
A. Yes. I'm not sure. It may have been the last place he lived. But I'm not sure.
MR. MITTEL: Defendants offer Defendants' 9, Your Honor.
THE COURT: Exhibit 9 may be admitted into evidence.
(Whereupon, Defendants' Exhibit 9 was admitted into evidence.) [page 748]
BY MR. MITTEL:
Q. Now, there's been testimony, Mr. Motta, about the rituals that you use in the Society Ordo Templi Orientis being different than those that were used in the past in the Ordo Templi Orientis.
Is that the truth?
A. That is correct, sir.
Q. Did you change those rituals?
A. Yes.
Q. Could you explain why, please?
A. Masonic rituals are supposed to be psychodramas. They -- in the accepted psychiatric terms. They are plays through which individuals reach certain conclusions or certain catharsis.
In Maine, Mr. McMurtry expressed an opinion that it's unimportant that the rituals --
MR. MacKENZIE: Objection, Your Honor. That's hearsay.
THE COURT: Well, just return to the place, Mr. Motta, to the reasons why you changed the rituals.
THE WITNESS: Yes, Your Honor.
When the rituals were published this means -- well, I will establish an analogy, Your Honor. It's the same thing as a college examination. [page 749]
If you publish a college examination, anyone can pass that examination. As long as they can read, or if at lest they can learn by heart what someone reads to them then can pass the examination.
If a ritual is published -- in the first place any scoundrel, any person without scruples, any person without any honesty will know the correct responses to a particular or actions and will perform that particular series of actions.
It is easy to say that as long as the signs and the words and the passwords are hidden, everything is all right. But that's not correct, because the rituals, in themselves, are really an important of it.
Passwords ritual signs can be improvised at any moment. As a matter of fact, the semestrial word of, at least the OTO, I'm not familiar with other Masonic organizations, changes every six months.
One of the reasons it changes is to help keep the secrecy and confidentiality of the Order.
If the rituals are published they cannot initiate any longer, cannot instruct any longer, cannot be used to explain the people who are worthy of belonging to the organization or not.
Crowley adapted the original German rituals to the Law of Thelema according to his likes. Members in [page 750] other countries, some of them accepted it; some of them did not accept. Crowley had to use his own rituals.
They were sacred. He sometimes read them to individuals. Those individuals were usually candidates to the A.'.A.'. or candidates to admission in the OTO.
He more than once wrote very clearly that those rituals would be kept completely confidential.
It was written -- I'm not sure if it's written in the Constitution itself or if it's written in the duties and privileges -- Liber 51, if I am not mistaken that rituals must be kept secret at all times.
It's part of the oaths of the grades in the rituals themselves that the rituals should be kept secret at all times.
If they are published, the Order cannot initiate.
The thing to do in this case is to try to create a new rituals which would provide the same kind of classes and the same kind of insights using a different dramatic form.
This can be done by the Outer Head of the Order at any time.
Q. Let me ask you now if at some point in time Mr. Germer attempted to send you a charter to run a lodge of the Ordo Templi Orientis? [page 751]
A. He did.
Q. Did you ever get that charter?
A. No.
Q. Did you at some point exchange some correspondence with Mrs. Germer expressing surprise about your not getting the charter?
A. Complete surprise.
MR. MacKENZIE: Objection, Your Honor.
I don't think there's been foundation laid that he knew that Karl Germer had ever sent the charter.
THE COURT: Well, I assume Mr. Mittel is going to get into that now.
BY MR. MITTEL:
Q. Did you get a letter from Mrs. Germer sometime in 1962 or 1963 asking if you had received such a charter?
A. Was it 1963?
Q. It might have been.
A. I know I wrote a letter.
Q. And let me now show you Defendants' Exhibit 52 which is a letter to Mrs. Germer from yourself, dated December 24th, 1963.
Would you read to the Court the highlighted material in the center of the first page, please?
A. "I never got any patent of the OTO." [page 752]
Q. Is the word "patent," as you use it, similar to the word charter?
A. Yes, I use them indifferently, indiscriminately.
MR. MITTEL: Your Honor, the story is already told more fully in exhibits that are already admitted, so I'm not going to pursue it further. I just wanted to establish it.
BY MR. MITTEL:
Q. Now, Mr. Motta, the Society Ordo Templi Orientis has registered a series of trademarks here in the United States with the Patent Trademark Office.
Do you know that?
A. Yes.
THE COURT: That's registered by this corporation as OTO?
MR. MITTEL: That's right.
BY MR. MITTEL:
Q. What I'd like you to do is tell me the first date on which you or the Society used the specific marks that I'm going to tell you about right now.
First, what I call the elliptical seal, what has also been referred to as the vesica.
Do you know what I am talking about?
A. Yes.
Q. When did you first begin using that mark? []page 753]
A. In the United States?
Q. Anywhere.
A. It was in Brazil. I believe I had the paper made soon after I had read Mr. Germer's will and Mr. Crowley's will.
Q. So that would have sometime in the mid-1970s?
A. Between 1974 and 1975.
Q. And in the United States when did you first start using it?
A. I'm sure it was much after I got a letter from Mr. McMurtry and mr. Wasserman.
Q. Which letter do you mean?
A. That only letter I ever got from Mr. McMurtry.
Q. That's the one sometime in Mid-July of 1976?
A. Yes.
MR. MITTEL: Do you want me to identify that, Your Honor?
THE COURT: No.
BY MR. MITTEL:
Q. How did you happen to begin using the vesica in the United States after that letter?
A. I had -- Mr. James Daniel Gunther was my representative of the order of Thelema.
I had the paper printed in Brazil with the seal in color which never was done that way before. [page 754]
And I sent him the paper and I sent him the paperwork as the OTO Director in the United States of America. I do not remember the exact date.
Q. And he then began using that seal, that letterhead when he made communications with other people?
A. Yes.
Q. The next is the mark "OTO," just the three letters. When did you first begin using that mark?
A. That was in 1962 in Brazil. That;s when I published the Manifesto of the OTO in Portuguese that I later destroyed.
Q. And when did you first start using that mark in the United States?
A. At about the same time that I sent the special paper to Mr. Gunther.
THE COURT: I'm sorry. That was 1976?
THE WITNESS: I'm not sure about the dates, Your Honor.
I'm sorry, I'm very bad at it.
BY MR. MITTEL:
Q. How soon after you got Mr. McMurtry's letter did you have the letterhead prepared and sent to Mr. Gunther?
A. I do not remember exactly when, but it took some time. [page 755]
Q. Two months, three months?
A. It should be apparent in my correspondence to Mr. Gunther, but I don't have it here.
Q. Now, the next mark is "Ordo Templi Orientis."
A. At the same time that I had the seal printed in Brazil. Because the title was the Society Ordo Templi Orientis, Society Ordo Templi Orientis in Brazil. And I made it for the United States as Society Ordo Templi Orientis in America.
Q. Did you use the words Ordo Templi Orientis while you were in Brazil?
A. Yes.
Q. As far back as 1962 or only beginning in 1976?
A. No, in 1962 I've only used the words OTO.
Q. So you didn't use the words Ordo Templi Orientis in Brazil until --
]
A. I'm sorry. It's part of the manifesto. The words were used in 1962, but just as a translation in Portuguese of the manifesto of the Ordo Templi Orientis.
MR. MITTEL: May I have just a moment, Your Honor.
THE COURT: Yes, you may.
BY MR. MITTEL:
Q. Did you ever give mr. McMurtry or Mr. Wasserman or, [page 756] for that matter, any of the plaintiffs permission to use any of those marks?
A. No, except for Mr. Starr.
Q. He's the only person that's appeared so far in this trial to whom you gave permission?
A. Yes.
Q. And did you give him that permission when he was a member of the Society Ordo Templi Orientis?
A. Yes.
Q. Yesterday, we were talking also about Thelema Publishing Company and Thelema Publications. And I asked you a series of questions about that.
Could you now explain to the Court the periods of silence and the periods of publication of the A.'.A>'. and the OTO, please?
A. Traditionally, Your Honor, the A.'.A.'. has a period of speech in which it promulgates its doctrines and publishes books.
And a period of silence in which it does nothing except train the candidates that it admitted during the preceding period of silence -- I'm sorry -- speech.
During the period of speech which lasts five years A.'.A.'. announces and tries to attract candidates.
During the next period, which is a silence, [page 757] which also lasts five years, the A.'.A.'. tries to train those candidates.
It's traditional; it was established by Crowley. It was scrupulously followed by Mr. Germer, who was my teacher in the A.'.A.'., my instructor. And I followed it myself.
Q. Can you tell the Court whether you are now in a period of silence or a period of speech in the A.'.A.'.?
A. We are nearing the end of a period of silence.
The next period of speech starts April 8th, noon, Cairo, Egypt hour, 1986.
Q. Do I understand that the name Thelema Publishing Company is a name that you only use with A.'.A.'. publication?
A. Yes. Although there is the fact that the OTO owns the copyrights. But the A.'.A.'. does not publish during periods of silence.
Q. When you published "Equinox" 5, No. 2 in March of 1979, do you know in what parts of the country that book was sold?
A. It was sold throughout the entire United States and also in other countries.
Q. The people on your mailing list to whom you announce publications of books, do they live in all the States of the United States? [page 758]
A. And in other countries, too.
Q. When you send them an announcement for books that are going to carry the imprint of Thelema Publishing Company, do you say this book is a publication of Thelema Publishing Company?
A. I have not yet done such, because the lists have been made after the A.'.A.'.has gone through its period of silence.
Q. Well, how did you advertise before you prepared the list?
A. I did not advertise at all. I used a distributor and we sent a circular letter to book shops.
Q. And were those book shops all around the United States?
A. Oh, yes.
Q. And do I understand that you had no objections to Mrs. Smith using the name Thelema Publications?
A. I would have liked very much to have worked with her.
Q. But you're not objection to her continuing to use that name?
A. Of course not.
Q. Now in -- let me show you a letter that's been marked as Defendants' 20-A and ask if you can tell me who wrote that letter, who received it and what the date [page 759] is?
A. I wrote this letter.
THE COURT: What's the number?
MR. MITTEL: 20-A. I'm sorry, Your Honor.
THE COURT: Zero-A or 28?
MR. MITTEL: Zero-A. I think it's in the supplemental list.
THE WITNESS: I wrote this letter to Mr. Germer from Baton Rouge, Louisiana, April 27, 1953.
I was not yet a member of the A.'.A.'.
BY MR. MITTEL:
Q. What is the subject of the letter, generally?
A. It was a sort of a spiritual confession which included my particularly and most special hangup which was about the size of my sexual organs. The small size of my sexual organ, I should say.
MR. MITTEL: Your Honor, I can either offer this exhibit and if there's an objection, then I'm just going to have Mr. Motta read the entire letter into the record. And it's eight pages long.
THE COURT: Is there an objection?
MR. MITTEL: Defendants are going to offer Exhibit 20-A.
MR. MacKENZIE: No, Your Honor, no objection to that fact that he wrote it. [page 760]
THE COURT: Exhibit 20-A will be admitted into evidence.
(Whereupon, Defendants' Exhibit 20-A was admitted into evidence.)
BY MR. MITTEL:
Q. Now, Mr. Motta, did you expect or what was your expectation as regards what Mr. Germer was going to do with that letter.
A. I had read the letter thoroughly more than once. I mentioned that I wanted him not only to clarify my thoughts about all my different problems that I mentioned in it.
But I probably also expected him expected him to give me some kind of natural formula by which I could increase the size of my penis.
Q. Did you expect him to circulate that letter amongst his friends?
A. He would never do that.
Q. Did de ho that, as far as you know?
A. No.
Q. Did you ever hear from any members of the OTO about that letter when you were in California?
A. No, he never talked about us to each other that way at all.
Q. Did you ever hear by mail -- [page 761]
MR. MacKENZIE: Objection, Your Honor, Mr. Motta met Mr. Germer on three occasions.
And I don't think he has any capacity to speak as to what Mr. Germer's method of operation was.
THE COURT: The last portion of his testimony may be stricken subject to to establishment of foundation.
BY MR. MITTEL:
Q. Did you ever discuss with Mr. Germer his means of -- well, let me ask you this:
Did he ever talk with you about his other pupils? Just yes or no.
A. No, no.
Q. Are you aware that he ever talked to any of his other pupils about anybody else who was a pupil?
A. Yes, but not as intimate as this.
MR. MacKENZIE: Objection again, Your Honor.
I don't think this testifies as to the content of Mr. Germer's --
BY MR. MITTEL:
Q. How do you know that?
A. I do not know if it was said here that I only met Mr. Germer twice. I didn't here very well.
I met Mr. Germer four times. I lived at his house in Hampton with Mrs. Germer and him for a week. [page 762]
And I went to Barstow and lived in Barstow for a month. And for two weeks of that month I lived at Ara {SIC sb. "Ero" --weh} Shivonen's (phonetic) hours with Inst {SIC} Shivonen (phonetic) and Mr. Germer.
Mr. Germer introduced me to all the people in California. I remember now that I forgot now that I forgot to include Dr. Montenegro.
The specific point that shows that Mr. Germer was stubbornly scrupulous bout speaking about his pupils was that he told me that Dr. Montenegro at the time had to leave a profitable clientele because some slander had been spoken about him.
I was curious and asked him: What had been spoken? He absolutely refused to tell me.
Q. When you were visiting the other members of the OTO in California, did any of them ever give you any indication that they had heard from Mr. Germer about different members?
A. From Mr. Germer, no, from each other, yes.
Q. When did you first learn -- let me withdraw that question.
Let me show you Defendants' Exhibit 71-A. And let me ask you to read the third paragraph on the first page which I have just pointed out to you.
A. "As you will observed from the
newsletter, Brother Montenegro
(Dr. Montenegro, a successful
professional man) and Brother
Burlingame have already been
unnecessarily abused somewhat.
(Both are deceased.)"
Q. And was there some material sent to you with the letter that discussed Brothers Montenegro and Burlingame?
A. Yes.
Q. And was that material offered by Mr. McMurtry?
A. Yes, or at least his newsletters.
Q. Would you now read this paragraph above this one that you just read?
A. "Especially do I concern myself
with the duties and privileges
of the Order, Item 73. It is
only gossip,. in other words,
I have been told about a
certain letter (from you to
Germer) which has been circulated
amongst newly made members --
I have not seen it myself, but
have it on good authority that
this is done." [page 764]
Q. Now, did you know what that certain letter was that was being circulated?
A. I had been sent a copy of a letter that was allegedly being circulated. I say "allegedly," because the person who sent the letter did not sign his letter with his real name.
But I do not know which letter she was inferring to and I inferred it was a letter I had sent.
Q. And is that letter Defendants' 20-A which we were just looking at?
A. No, it was a different letter.
Q. But was it about the same subject as Defendants' 20-A?
A. Oh, yes.
Q. So you had written other similar letters to Mr. Germer?
A. Oh, at least five.
MR. MITTEL: Your Honor, for your reference, Item 73 of the Duties and Privileges of the Order appears at page 223 of Defendants' Exhibit 1-A.
BY MR. MITTEL:
Q. Now, what was your reaction on learning from Mrs. Smith that one of these letters about your sexual organs was being circulated amongst the members of the OTO in California? [page 765]
A. I already knew about it.
Q. And you knew because you had gotten a letter sometime shortly before that?
A. Yes, about two weeks before, may more.
Q. Who did you get that letter from.
A. A person who signed himself Robert Duerrenstein. But it was not the real Robert Duerrenstein who later wrote me and to whom I sent a copy of the letter and denied having been the person who sent it.
Q. What was your reaction when you first found out the letter was being circulated?
MR. MacKENZIE: Objection, Your Honor.
We still haven't established that the letter ever has been circulated. It's juts that someone signed the letter by the name of Robert Duerrenstein and alleged that the letter was circulated.
THE COURT: Well, I think that's sufficient foundation.
BY MR. MITTEL:
Q. Can you answer the question?
A. Oh, yes, I'm sorry. I was annoyed, but certainly not as devastated as I would have been when I wrote the letter.
Q. And why was that?
A. What exactly do you mean, sir? [page 765]
Q. Why were you not as devastated as you might have been some twenty years before?
A. I was much older, much more experienced and have been able to please a few women with my small cock.
Q. After you found out that the letter or letters had been circulated, did you then undertake to sort of speak, make the episode public?
In other words did you publish some commentary in "Equinox" 5, No. 2 about the problem yourself?
A. I only did this after -- at about the same time I got this letter from Mrs. Smith, I got a letter from Ms. Phyllis Seckler. And the letters go together.
It was after I received those two letters that I decided to make all my -- all my dirty linen public, all my dirty linen public.
Q. And is that because your dirty linen was already public, so to speak?
MR. MacKENZIE: Objection; leading.
THE COURT: Overruled.
BY MR. MITTEL:
Q. Will you answer, please?
MR. MITTEL: Would you read him back the question, please?
(Record read.)
THE WITNESS: Not exactly. It's a little [page 767] more complex than that. Ms. Phyllis Seckler had sent a letter to a pupil of mine sometime before in which she stated that some things were being done, wherever she was living at -- I do not recollect that place -- that would not please Motta. It was a very happy remark.
When I got a copy of that letter in the mail, I immediately knew what was being done with my correspondence. When I had planned a manifesto in the book that Weiser was going to publish and which I eventually myself as "Equinox" 5, 2.
When I put in the manifesto that those people in California were members of the oto and had charters from Mr. Germer, both ladies had written Weiser disassociating themselves completely from my publication. At that time I knew that something was very wrong, but I waited.
What I got was two letters almost simultaneously so different in tone from the letters that had been sent to Weiser.
I knew that -- well, Mrs. Seckler has stated here during her testimony that the reason that Mr. McMurtry left her home was that she couldn't afford him anymore.
Mr. Gunther told me, wrote me in Brazil -- I was in Brazil when I got those letters -- Mr. Gunther [page 768] wrote me in Brazil that Mr. McMurtry had left Ms. Phyllis Seckler for a younger woman.
The two letters received at almost the same time indicated simply a desire on the part of Miss Seckler to avenge herself on Mr. McMurtry.
And I did not consider that that was the kind of association that I would desire.
BY MR. MITTEL:
Q. Let me now show you Defendants' 71 and ask if that's the letter that you got from Phyllis Seckler at the same time, or about the same time, you got he letter we just looked at from Mrs. Smith.
A. Practically at the same time, yes.
Q. Did you answer either of those letters?
A. I did not. And the --
Q. Wait just a second.
A. I'm sorry.
Q. Mr. Motta, at some time in 1975 did you gave James Wasserman the power of attorney?
A. I did give him the power of attorney.
Q. And in 1976 did you instruct him to obtain copies of the Crowley-Germer Library in California?
A. Yes.
Q. Did he go to California and indicate to you that he was going to do that? [page 769]
A. Yes.
Q. Did he do that?
MR. MacKENZIE: Objection, Your Honor.
I think we're talking about the breach of Mr. Wasserman, if it occurred, it occurred in 1976. And insofar as the Statute of Limitations --
THE COURT: Well, I have not ruled on the Statute of Limitations. To a certain extent it depends upon when the cause of action alleged to have occurred or a later date in which Mr. Motta may have discovered since that's the nature of the accusation.
But I can't rule on the Statute of Limitations until I hear the evidence.
MR. MITTEL: I guess I should say, Your Honor, it's an ongoing tort. He still doesn't have the copies. And, in fact, may never get them.
MR. MacKENZIE: Your HOnor, if I may just respond. The tort, if it occurred at all, was in 1975. The damages are still --
THE COURT: I will determine that. Neither one of you need to argue. I will determine that after I hear what the evidence is.
I've heard Mr. Wasserman's testimony, but I haven't Mr. Motta's. And I don't believe I can rule on the Statute of Limitations until I hear that testimony. [page 770]
BY MR. MITTEL:
Q. Now, at some point when Mr. Wasserman was in California, did you get a letter from him indicating the he had decided that Mr. McMurtry was the OHO and Mr. McMurtry should have possession of the library?
A. I believe I got a letter from him along with the letter that Mr. McMurtry sent.
Q. And at some point prior to that had you had a conversation on the telephone?
A. Yes.
Q. And what did you ask Mr. Gunther to do as respects Mr. Wasserman?
A. I had been trying to trace Mr. Wasserman for some time, because I had received copies of the letters that the ladies sent disassociating themselves from me, and I knew then that something was wrong.
And I wanted to make sure that they had charters from mr. Germer before I associated myself with them.
I could not reach Mr. Wasserman, although in the telephone conversation in which I told him that I was sending him power of attorney I asked him to keep in touch with me. I could not reach him at all.
So I -- telegrams and telephone calls to the United States from Brazil were rather expensive for me. [page 771]
So I called Mr. Germer {SIC sb. "Gunther" -def} and asked him to do the phone calling and to try to find out where Mr. Wasserman was and to tell Mr. Wasserman to get in touch with me.
Q. Did you also tell Mr. Gunther that you wanted Mr. Wasserman to get copies of the library for you?
A. This they already knew. What I told him was that I wanted Mr. Wasserman to make sure the people involved had charters from Mr. Germer or from Mrs. Germer before they allowed them access to the material.
Q. While the Germers were alive, both Mr. and Mrs. Germer, and then just Mrs. Germer, did you send money to them?
A. As often as I could, yes.
Q. There was testimony yesterday about Defendants' J which is "Magick Without Tears," Unexpurgated Commented.
In that book, tell me, first of all, is there material originally written by Aleister Crowley?
A. The original edition of "Magick" -- yes, sorry.
Q. And does it appear in the book as it was originally written by Aleister Crowley?
A. Except for pronoun changes which are explained in the editorial introduction, it is the exact original text in the original edition of "Magick Without Tears" by Mr. Germer.
Q. And when you say "pronoun changes," what do you [page 772] mean?
A. Crowley always used "man," the general man, to mean both men and women. I wanted women -- at least, women I admired, are these days very much militant about being subject to man -- and I wanted to make sure that this militancy would not interfere with the understanding that the book was directed to them, too.
So whenever the pronoun "man" was used or in a way that it wasn't equals, or might make feminists being blocked from reading the book I changed it to the cumbersome he or she in order to conclude {SIC sb. "include" -def} both sexes.
And I put he first because unfortunately I'm a he. At least I think so.
Q. At one point, one of the plaintiffs in this case was a man by the name of Francis Regardie.
Did he ever publish a version of "Magick Without Tears"?
MR. MacKENZIE: Objection. No foundation.
THE COURT: Well, it';s a foundational question.
BY MR. MITTEL:
Q. All you have to do is say yes.
A. Yes.
Q. Have you read that book or at least looked at it?
A. I looked at it just before he decided to publish [page 773] that one.
Q. And in that book, the Regardie book, that is, were there deletions from the original version written by Aleister Crowley?
A. I had know it, yes.
Q. About how many words of the original text were deleted?
A. Fifteen thousand.
Q. Was the original Aleister Crowley version of "Magick Without Tears" published?
A. Yes.
Q. All right, Mr. Motta, as you know, one of the things that the plaintiffs are complaining about is a series of what they call libels.
What I would like o do now is read you some of the things about which they're complaining and I'd like you tell me why you think they're are true, if you do.
First of all, about Phyllis Seckler, you say she has misappropriated -- and I'm reading from the Complaint and not from the full text in whatever work this material might appear.
It says that "She has misappropriated Thelemic property."
Can you tell us -- first of all, do you think [page 774] that's a true statement?
A. Yes.
Q. Can you tell us why you think that to be the case?
A. It has been clear from her correspondence, from Wasserman's correspondence, from the reports from Mr. Gunther, letters from Mr. Gunther, telephone conversations with Mr. Germer and Mrs. Germer, her letter to me offering to send me my correspondence just to let me know that she had it in her hands, the library in her hands, and offering me the deal. It was quite clear.
Q. All right. You also are accused of saying that she was accused by Mrs. Germer of sending a gang led by her own children to assault and rob Mrs. Germer's person and residence.
A. She was, she was.
Q. And how do you know that?
A. Mrs. Germer knew Miss Seckler very well, and I knew Miss Seckler better than she probably thought I knew her. Even in her youth, when I first met her, she was a lady with a steel hand and a glove of velvet.
Her children lived with her in her house. It would have been totally inconceivable that her children could have organized such a deed without her knowledge and consent, to say nothing of her inspirations. [page 775]
However, I did not state that she had done this. I did not know for sure. I stated that Mrs. Germer had said she had.
Q. Let me now show you a document that's been marked Defendants' Exhibit 53-A. And let me ask you to tell us what that is? Again there's both a typewritten and a handwritten version.
Is that a letter from Mrs. Germer to you, Mr. Motta?
A. It is copy of a letter from Mrs. Germer to me, yes.
Q. All right. And could you read, if you would, the material that I've marked on the first typewritten page discussing the alleged burglary?
A. Starting with "You will" or starting with "This brings me"?
Q. There's a paragraph there that talks about --
A. You want the entire paragraph?
Q. Why don't you -- well, let me just direct the Court's attention to it.
MR. MITTEL: Your Honor, this paragraph begins at the bottom of the first page of the typewritten version discusses the burglary and makes reference to the involvement of the daughter.
If you want, I'll have Mr. Motta read it into [page 776] the record. Otherwise, I'm just going to offer Defendants Exhibit 53-A
THE COURT: I'll admit Exhibit 53-A.
(Whereupon, Defendants' Exhibit 53-A was admitted into evidence.)
BY MR. MITTEL:
Q. Next, Mr. Motta, let me show you another new exhibit, Defendants' 53-B.
Can you tell us what that is, please?
A. It is a letter from Gerald Yorke to Mrs. Germer written in 19 November '68.
Q. Could you read the first paragraph on the top of that letter, please?
A. "Your 6 November. I enclose
the paper for which you ask.
You write me that Stella Spoker {SIC sb. "Seckler" -weh},
the daughter of Phyllis Wade
through {SIC sb. "threw" -def} the acid in your eyes
and that two families were
responsible for the robbery.
"If the Spokers {SIC sb. "Secklers" -weh} were one family,
who was the other family?
Which of the OTO groups in the
U.S.A. was responsible and
what is their address. All [page 777]
this should be reported for
historical reasons."
MR. MITTEL: Defendants offer Exhibit 53-B.
THE COURT: May be admitted.
(Whereupon, Defendants' Exhibit 53-B was admitted into evidence.)
BY MR. MITTEL:
Q. Next, Mr. Motta, it's been alleged that you libeled Mr. McMurtry by saying that "he has slandered legitimate OTO members."
A. Yes.
Q. Can you tell us why?
A. From the letter that Mrs. Parson sent me --
Q. You mean Mrs. Smith.
A. I'm sorry, Mrs. Smith sent me and from his own dealings with me.
Q. And when you say "the letter that Mrs. Smith sent you," are you referring to Defendants' Exhibit 71-A?
A. Yes, sir.
Q. That letter makes reference to the Duties and Privileges of the Order Item 73.
MR. MITTEL: I gave you a citation to that before, Your honor, in Exhibit 1-A. [page 778]
BY MR. MITTEL:
Q. Would you, please, read Item 73?
A. "73. The crime of slander
which causes so great a
propulsion {SIC mb. "proportion"? -weh} of human misery,
is rendered extremely dangerous,
if not impossible, within the
Order by a clause in the
obligations of a Third Degree."
Q. You also are alleged to have libeled Mr. McMurtry by saying that he misappropriated Order property. Did you do that?
A. Yes.
Q. And what do you base opinion that he did that?
A. The OTO is an international organization. Members of the Ninth Degree of the OTO are part proprietors of all the property of the Order.
Q. And are you going to repeat what you testified to earlier about the rituals and about how the members of the Ninth Degree must share the property with one another?
A. Yes. There is another thing, too.
Q. All right.
A. Any member of the OTO, no matter what grade, has a right of access to any library in any brother's house of [page 779] the Order.
Q. And is the Grand Lodge in Berkeley, at least as it's been described here in this trial, a profess house?
A. It claims to be.
Q. And should any property of the Order that's in Mr. McMurtry's possession be kept in the profess house?
A. Doesn't he live there?
Q. I don't know.
A. I don't know either.
Q. Does it matter where he lives?
A. If it's his personal property, it should be kept wherever he wants it.
Q. But if it's the property of the Ordo Templi Orientis, where should it be kept?
A. I should be kept in either a lodge or a profess house of the OTO.
Q. And have you been allowed access to the property that Mr. McMurtry has?
A. Neither I nor any members of the OTO who are not members of Mr. McMurtry's group nor Mr. Metzger in Switzerland nor any members of Mr. Metzger's group nor any members of the Grant group in England who, although Grant was expelled are not, by that pact {SIC mb. "fact" -weh}, dismissed from the OTO, unless by examination and sanction.
Q. Is there a portion of the rights and duties that [page 780] requires members to make available property in profess houses to one another?
A. Specifically, libraries, yes.
Q. Can you just tell the court the page number on which that appears, please?
A. Page 219.
Q. That's in the Constitution or in the rights --
A. Oh, no. It's in the rights and privileges and by chance it's in the rights' part.
Q. Now, you've also been accused --
A. Page 219, No. 46.
THE COURT: Mr. Mittel, I'd like to conclude for the day.
MR. MITTEL: I'm sorry, I was rushing to finish with this one category which would have only left me one very brief thing to do tomorrow morning.
THE COURT: Then we will be able to finish if not tomorrow morning, tomorrow afternoon?
MR. MITTEL: Right.
THE COURT: We will be able to finish with Mr. Motta tomorrow. And then how many more witnesses are you going to have?
MR. MITTEL: I've got for sure -- I think I'm going to have to go Monday unless things go very, very quickly. And I know they won't because I know Mr. [page 781] MacKenzie is going to want to cross.
I've got two people that I've subpoenaed who may be disposed of in five minutes and mat take a while. I've got then, Mr. McMurtry, Miss Seckler --
Let me look and give you an estimate of how long it will be.
I'd say somewhere between half an hour and an hour for my direct of Miss Seckler.
I'd say between fifteens minutes and half an hour for my direct of Ms. Smith.
I'm going to guess somewhere between an hour and two to finish the cross of Mr. McMurtry and --
THE COURT: Unless you use his deposition.
MR. MITTEL: Unless we use his deposition and do his direct.
And probably an hour for direct of Mr. Weiser {SIC ?!}.
MR. MacKENZIE: Do I understand you to say that you are not going to be calling Mr. Starr or Mr. Wasserman? They have flights on Saturday.
MR. MITTEL: That I would call Mr. Wasserman -- I think I have some very brief direct of him, although that may -- I can do Mr. Wasserman in an hour. At the most, maybe half an hour.
MR. MacKENZIE: Could you do it tomorrow?
MR. MITTEL: I'll consider it a privilege [page 782] to do it tomorrow.
THE COURT: All right. Let's begin tomorrow afternoon at 2:00 o'clock.
MR. MITTEL: Thank you, Your Honor.
THE COURT: Now, I'd like you to make an effort to see what you can get through tomorrow.
Now you, of course, have to put on in evidence the testimony you think is appropriate, but please bear in mind that having heard it once, I don't need to hear it two or three times.
MR. MITTEL: I know that, Your Honor.
THE COURT: We are adjourned until two o'clock tomorrow afternoon.
(The proceedings adjourned.)
[page 783] --- this page is used in the Transcript for the certification by the Court Reporter Pro Tem. In as much as this is not a legally certifiable electronic document, the page shall remain blank to signify that this particular version is for research and not for legal representations.
---- Transcribed from the record with notes by William E. Heidrick, Grand Treasurer General, Ordo Templi Orientis.
This is an electronic copy of the McMurtry vs. S.O.T.O. Trial Transcript, made for purposes of analysis and study.
Entered by Bill Heidrick, Grand Treasurer General O.T.O.
Notes: Original transcript pages in square brackets: []
Notes and corrections in curly brackets: {}
with source indicated:
Heidrick corrections & notes: { -weh}
Plaintiff formal corrections: { -pla}
Defendant formal corrections: { -def}
abbreviations used to signify alternative:
"should be" = sb.
"may be" = mb.
abbreviations used to signify transcript confidence:
"doubtful or unknown" = ?
"highly questionable" = ?!
"Thus in transcript" = SIC
"Let it Stand (no change to original) =STET
Obvious spelling errors have often been corrected
without special notice.
Regarding evidence received formally, there appears to be a lapse in the manner of cross-reference used by the court reporter. Some evidence appears on the face of The Court's statements to have been accepted in batches, and these cross-references are not generally tabulated by the reporter. In addition, some single action receivings in evidence may have been similarly over-looked. Evidence is therefore to be found as received through an examination of the entire text of the several volumes of this Trial Transcript, and through a close reading of the decisions of The Court in the progress from page to page of this Transcript.
This is the fourth of four files of the transcript.
This file covers pages 784 through 980
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE CHARLES A. LEGGE, JUDGE
Grady McMurtry, William E. Heidrick, Phyllis Seckler, Helen Parsons Smith, William Breeze, Francis I. Regardie, James Wasserman, and Kenneth Anger, individuals, Ordo Templi Orientis, a corporation, and Thelema Publications, a business entity,
Plaintiffs,
vs.
Society Ordo Templi Orientis, a corporation, Thelema Publishing Company, a corporation, Marcello Ramos Motta, an individual, and Does I through X, inclusive,
Defendants.
CIVIL NO. C-83-5434
VOLUME V
PAGES 784 - 980
REPORTER'S TRANSCRIPT OF PROCEEDINGS OF COURT TRIAL
Friday, May 17, 1985
450 Golden Gate Avenue
San Francisco, CAlifornia 94102
REPORTED BY:
Nancy J. Palmer
[page 785]
APPEARANCES:
FOR THE PLAINTIFFS:
STUART I. MacKENZIE, Esquire
80 Swan Way, Suite 301
Oakland, CAlifornia 94621
FOR THE DEFENDANTS:
LAW OFFICES OF MITTEL & HEFFERAN
BY: ROBERT EDMOND MITTEL, Esquire
5 Milk Street,
Portland, Maine 04112
[page 786]
I N D E X
VOLUME V
Examinations:
Witness: Direct Cross Redirect Recross
Grady Louis McMurtry 794 822 830
(Called by Defendants)
James Wasserman 832
Marcelo R. Motta 839 855
Resumed 846 890
Voir dire 889
Paul Stuart 948
Phyllis Seckler 951
Recalled 974
Helen Parsons Smith 959 962
William E. Heidrick 962
[page 787]
Friday, May 17, 1985 12:05 o'clock p.m.
P R O C E E D I N G S
FIFTH DAY
MR. MITTEL: Good morning, Your Honor.
THE COURT: Good Afternoon.
(Discussion off the record.)
THE COURT: We may go on the record.
Mr. MacKenzie?
MR. MacKENZIE: Yes.
THE COURT: I want to repeat for the record a conversation I had with you this morning.
I and my clerk attempted to reach both of you yesterday afternoon to advise you of the scheduling, but we were unable to do it. So the only person I could get ahold of this morning was Mr. MacKenzie to advise him that we would be beginning at noon today.
Other than a short interruption for a small -- couple of criminal matters, that I have to hear and whatever we need, of course, for our comfort, the comfort of the court reporter, we'll go through today. and It's my objective to finish the testimony today.
I did discuss with Mr. MacKenzie Mr. McMurtry's health, and I see that he's in the courtroom [page 788] here.
And I'd say to Mr. McMurtry, you know, these proceedings aren't as important as your own health and life and don't let these proceeding interfere with them. If you're not comfortable and you feel you should go home, please do.
MR. McMURTRY: Thank you, sir. I certainly take that as cognizant. And I've been in the hospital for a couple of days. And I think I'm up to where I am able to stand through the day.
THE COURT: But don't tax yourself.
MR McMURTRY: Yes, sir.
THE COURT: Okay. Now, two matters of legal rulings.
Okay. First of all, the rulings with respect to the admission of Plaintiff's Exhibits.
Plaintiff's Exhibits 6, 83, 84, 85, 86 and 100 are admitted into evidence for the purposes of showing possible confusion in the names of the two Thelemas and for the second purpose of showing actual publication of some of the volumes.
Plaintiff's Exhibit 120 is not admitted into evidence. The defendants' Motion to Exclude is granted.
Now, the question has been raised about the libel and the Supplemental Complaint, possible [page 789] Supplemental Complaint, on the question of whether the libels occurring after the filing of the Complaint are to be taken into consideration here.
I've reviewed the Complaint and Plaintiff's Exhibit No. 59, which is a book published in 1983. Now, I believe that the plaintiff is limited to libels which were set forth in the Complaint or at least those published prior to the filing of the Complaint in this action.
I don't believe that the plaintiff is entitled to show separate or subsequent libels without the filing of supplemental complaint under Rule 15(d).
And I also don't feel that I can grant a motion for a subsequent Complaint under 15(d) because they did not the include the publications of which the defendants have not had adequate notice that they're being charged with specific items of libel, and hence no fair opportunity to present a defense.
That ruling, of course, does not necessarily preclude any injunctive relief. The timing of that would have to be appropriate.
But with respect, at least, to the issue of damages, all the alleged libel will be those which were published before the Complaint was filed.
MR. MacKENZIE: May those additional libelous [page 790] quotes, Your Honor, be considered by the Court, though, in determining Mr. Motta's state of mind?
THE COURT: Oh, yes. I should say that. Yes, I'm sorry. I had a note to address that same thing.
Publication of statements by Mr. Motta subsequent to the filing of th Complaint can still be relevant to the question of malice under the allegations of libel published prior to the filing of the Complaint.
But what I'm ruling on is that no plaintiff can be entitled to any damages for libels occurring after the filing of this Complaint.
MR. MacKENZIE: May I raise one other matter at this point, Your Honor?
I had wanted to ask, just out of an abundance of caution, really, to move to amend the Complaint to explicitly state the affirmative defense of failure to state a cause of action of the Statute of Limitations, the ones that are mentioned probably -- I don't know if that is necessary or not.
THE COURT: Well, I do not believe that's necessary.
MR. MacKENZIE: All right.
THE COURT: If you want to amend it and file an amended answer, you may do so. But I don't [page 791] believe it is necessary.
MR. MacKENZIE: Fine. Thank you.
THE COURT: I see that Mr. Motta is not here. Are we ready to proceed?
MR. MITTEL: Yes. The last I saw of him was at 9:10 as I was walking to the office and he was on his way to do errands and I said, "I'll see you at 12:30."
And when I got to the office and got a message from Mr. MacKenzie I was unable to reach Mr. Motta. So he would be arriving at the office sometime within the next half an hour. And I've asked them to tell him to come right over.
But I'm prepared to start with, depending on your own pleasure, Mr. Wasserman. And so -- and then just move through whatever witnesses we have physically available.
(Discussion off the record.)
MR. MITTEL: I will actually then start with Mr. McMurtry.
THE COURT: All right. Now, again, wait one more minute.
You submitted to me a copy of Exhibit 59, Mr. MacKenzie. Is this your copy? It's not the original is it? [page 792]
MR. MacKENZIE: A --
THE COURT: It's got holes punched in at the top, which makes me think it came out of one of your files.
MR. MacKENZIE: Yes.
THE COURT: So I'll return this to you so that your files are complete.
MR. McMURTRY: I've got another copy.
MR. MacKENZIE: Thank you.
THE COURT: All right.
Now, as I understand it, then, you're going to proceed, or I should say conclude, your cross-examination of Mr. McMurtry?
MR. MITTEL: And then move right into -- if you want, I'll even say, and now I'm starting on what I think is my direct case, but I don't think I need to do that.
THE COURT: All right.
MR. MITTEL: And I should also say that I've gone over my trial book and tried to delete as much as I think has been covered so that we can finish today, because I, too, would like to very much finish up.
THE COURT: Oh, yes. You don't want to be here any longer than necessary and stay another weekend. [page 793]
MR. MITTEL: Well, as I said, I have spend 26 years here, so I know it's great, but I want to get back to Maine.
THE COURT: All right, then. We'll recall Mr. McMurtry.
But, Mr. McMurtry, you can stay right there.
MR. McMURTRY: Sure.
THE COURT: I'm going to let you sit there at the counsel table.
If you want to turn the bench around --
MR. MITTEL: May I do that?
THE COURT: Yes, certainly do so and Mr. McMurtry can stay there at the table to testify.
GRADY L. McMURTRY,
called as a witness by the defendants, having been previously duly sworn, was examined and testified further as hereinafter set forth.
THE COURT: Mr. McMurtry, please bear in mind that you're still under oath from your prior testimony.
THE WITNESS: Yes, sir.
MR. MITTEL: Good afternoon, Mr. McMurtry.
THE WITNESS: Mr. Mittel.
MR. MITTEL: If there's any kind of problem you have, please just say so and we'll stop. [page 794]
THE WITNESS: All right. All right.
DIRECT EXAMINATION
BY MR. MITTEL:
Q. Do you know how many members of the Ordo Templi Orientis knew that you were the Caliph of, in, say, January of 1978?
A. January of 1978. '78, let me see. '76, '77, '78 ---
THE COURT: Pardon me one second.
(Discussion off the record.)
THE WITNESS: Someplace between 10 and 20.
BY MR. MITTEL:
Q. All right. Now, what about January of 1979?
A. Sir, I'm not prepared to give you my analysis of increases of membership, but we started out with eight Minervals in Berkeley, in 1977. And we have, within about ten years, we had 750. Quite obviously there was a change over time.
Q. Do you think Mr. Heidrick will have a better sense of the actual growth?
A. Mr. Heidrick?
Q. Yes, sir.
A. Oh, yes, sir, because being the Grand Secretary {SIC s.b. "Treasurer" --pla} General, he was very much in charge of membership operations, that people who are being mailed various [page 795] kinds of publications and people who are on the membership list, he is always very careful about trimming the membership list of people who don't pay their dues.
Q. You remember some testimony about a book called "The Secret Rituals of the OTO" by Francis King?
A. I believe so, sir.
Q. How soon after that was published did you become aware of its existence?
A. To the best of my knowledge, about a year.
Q. And did you or the OTO, of which you are the leader, take any action to stop Mr. King from publishing that book?
A. Mr. King had already published that book, sir. So we did not take action to stop him because the book was already published.
Q. Did you take any action to prevent any further sales or publications of the book?
A. No, sir. We did not have the financial sources to do so.
Q. Now, in 1976 you went to Calaveras County to get the library; is that right?
A. That is correct.
Q. The library was taken back to Miss Seckler's in Dublin? [page 796]
A. That is correct.
Q. And after several days of looking through it, you took back to Berkeley in -- and please don't quarrel with me about verbs. We understand your duty as conservator -- but you had several portions or at least parts of the library. Could you --let me just make sure I understand.
You took correspondence between Mr. Motta and Mr. Germer?
A. This is correct.
Q. And did you also take any correspondence of yours?
A. No, sir. Mr correspondence files had been taken by previous -- whoever did rob the library, because it was not there.
Q. So you looked for your files and could not find them?
A. Yes. That's the first think I looked for, was my files. And it was not there.
Q. And did you take any of Mr. Crowley's correspondence?
A. No. sir.
Q. There was that there, though, was there not?
A. I suppose. I don't really remember. there were four file cabinets, and I did not completely inventory them. But I'm sure there was plenty of correspondence. {page 797] And I didn't, but that didn't get counted.
Q. What was it that made you think that you should take Mr. Motta's correspondence?
A. Well, it wasn't so much as I should take it. It was a matter of curiosity. I had offered him that we could have this -- you know, can we have an agreement or some kind of a peace.
And when he wrote back and refused, I found some of it to be very psychologically interesting, and I thought, well, I might just as well take this, because at least it will be secure. And that was the size of it.
Q. Was it also a consideration that there might be a problem, a legal problem between you and Mr. Motta and you might need his letters?
A. He said he was going to sue me. That was possible, but I didn't really think of it too much like that. This was just interesting material.
Q. Did you take any other correspondence between any other people in the Ordo Templi Orientis at that time?
A. I do not believe so. I have no memory of it at all.
Q. Did Mr. Crowley ever tell you that you had any authority independent of Karl Germer?
A. Tell me or write me? [page 798]
Q. Either.
A. Independent in the United States?
Q. Yes, sir.
A. I don't recall him telling me I had any independent -- it could be a subject of Mr. Germer's allegation or approval.
Q. Did Mr. Crowley ever tell you or write you that you had any authority in South America or Australia or Asia?
A. Absolutely not.
Q. Did Mr. Germer ever give you any written authorization to do anything after, say, 1955?
A. There were questions of my getting together a nucleus and incorporation of the Order.
However, the exact dates are not certain in my mind. Our relations went on for a long time, though.
Q. But if we were to look at the letters that are in evidence here, we could have a very good idea of what happened?
A. Well, I certainly would be able to tell that, yes, sir.
Q. Do you remember the letter where Mr. Crowley wrote to Mr. Germer and said that he thought that Mr. Germer should have a tri utera (phonetic) {SIC sb. "triumvirate" -pla -def} appointed?
A. Yes, including --
Q. Yourself and Mellinger and Leffingwell? [page 799]
A. I believe it was Germer, myself and at one time Leffingwell. Now, I believe it was Mellinger to be included. It would be my guess it was Leffingwell. It's possible.
Q. And he also, that is, Mr. Crowley also said in that letter, did he not, "but ultimately the choice of what to do is yours," to Mr. Germer, didn't he?
A. To Mr. Germer, yes.
Q. Has the California Ordo Templi Orientis ever received permission from Mr. Motta or anyone in his corporate organization to use any of the trademarks about which we're talking?
A. No, sir. Not to my knowledge at all.
Q. Did you give permission or someone in your organization give permission to Samuel Weiser, Incorporated to use the letters OTO or the vesica --
A. A --
Q. -- in its publication of the Holy Books of Thelema?
A. I don't recall a written document, but we certainly had no objection.
Q. You did give permission to Samuel Weiser to use the vesica on the tarot deck that he published back in the mid-1970s, did you not?
A. Did you say Weiser?
Q. I believe I did. [page 800]
A. Are you distinguishing that from the lamen on the tarot deck?
Q. I don't think so.
A. You don't think so?
Q. Let me ask you then --
A. All right.
Q. -- did Weiser have any role in the publication of that tarot deck?
A. In 1970?
Q. At any time.
A. Sir, there are two questions here. One: When was it published? It was published in 1917 {SIC sb. "1971" -pla} by Lewellyn in Hong Kong.
Two, later on, several years, Mr. Weiser made arrangements with Mr. Yorke in England to photograph the paintings of the tarot deck. He brought out the publication and he brought out the tarot deck. He did not have any permission from me, as I say, in writing.
Q. At the trial in Maine, I asked you a question on page 508 of your transcript:
"Did you give Donald Weiser
or did the OTO give Donald
Weiser permission to use that
seal on the tarot deck?"
Your answer was: [page 801]
"Yes, both on the box and on
the outside and on one of the
cards on the inside."
Is that the case?
A. I'm sure I gave him verbal or at least tacit approval.
I don't remember giving him any writing approval.
Q. And by the OTO seal, we're talking about the vesica?
A. What we're talking about is the lamen, l-a-m-e-n, sir.
Q. The lamen.
A. That's the same as the vesica.
Q. And --
A. That's correct.
Q. That's the elliptical seal?
A. That's right.
MR. MITTEL: That's what I've called it, Your Honor, the elliptical seal.
THE COURT: Yes.
BY MR. MITTEL:
Q. You're not a member of the Society Ordo Templi Orientis, are you?
A. You mean the SOTO? No, sir. [page 802]
Q. And you gave permission to Samuel Weiser, Incorporated for the publication of this book, did you not?
A. I certainly gave my approval to it, yes, sir.
Q. You did not -- and by "you," I mean the California Ordo Templi Orientis -- has not brought a lawsuit against or never brought a lawsuit against -- let me strike that question. I'm sorry.
The California Ordo Templi Orientis did not bring a lawsuit against Phyllis Seckler when she sequestered the library, did it?
A. No, it did not.
Q. And id did not bring a lawsuit against her after the library disappeared, did it?
A. No, it did not.
Q. And id did not expel her when she sequestered it, did it?
A. No.
Q. And id did not expel her after it disappeared, did it?
A. No, it did not.
Q. It did, however, pass resolutions indicating that her conduct was in violation of the governing principles of the Ordo Templi Orientis, didn't it?
A. That is my memory. We were quite upset until we [page 803] reached an understanding.
Q. Did you have a reconciliation because she gave it all back?
A. No, sir.
Q. Has she given it back?
A. No, sir.
Q. Let me show you Defendants' Exhibit 69-A. It's a letter Miss Seckler wrote to you in which she accused you of violating several injunctions of the First Degree and other conduct.
She wrote that letter in March of 1977?
A. Yes, sir.
Q. Are you familiar with that letter?
Just take a look at it for a moment.
A. Yes, sir, I am.
Q. Is it because you received that letter from her that the California Ordo Templi Orientis did not expel her?
A. Why not? This has nothing to do with expelling; it's a personal matter.
Q. Well, she does accuse you in there of violating several important orders --
A. Well, she had very strong personal opinions about my misconduct, yes, sir.
Q. You have not allowed Mr. Motta to have access to [page 804] the library, have you?
A. Allowed him, sit?
Q. Yes, sir.
A. I gave him several options by which he might have access to the library when I wrote to him at that time -- I have not since -- but at that time I certainly did.
Q. In 1976 when Mr. Wasserman --
A. Yes, sir.
Q. -- wrote to you and said that he was going to come out and copy the library, you told him he couldn't come out, didn't you?
A. I did not tell him he couldn't come out. Wait a minute now. I think we're getting confused. We're talking about Wasserman, Motta or who?
Q. Well, I'm now talking about Wasserman.
A. Yes. Well, let's be sure. Well, the question is what, copying the library?
Q. Yes. In September of 1976 --
A. Yes.
Q. -- Wasserman wrote to you and said he wanted to come out --
A. Um-hum.
Q. -- and referred to the agreement that he had made with you and Miss Seckler and Mrs. Smith, and said he [page 805] was going to come and copy the library for Mr. Motta?
A. I believe that was what he said, yes, sir.
Q. And what did you tell him?
A. I don't recall having told him anything along that line, because in the meantime Mrs. Seckler decided that Mr. Wasserman could not have access to the Library. So the whole thing became moot.
Q. Are you saying that you did not tell Mr. Wasserman that he could come out and make copies?
A. It depended on exactly what he wanted to make copies of -- everything to send to Mr. Motta, the thing was Mr. Wasserman was going to come out and inventory the library. He was going to see what was available.
For example, Mr. Motta had asked for xeroxes of all the materials. But we had to determine which was important to him. And Mr. Wasserman was just to assist us in this.
And at that point we could possible have had some xeroxing to do for Mr. Motta.
However, after Mr. Motta replied, all this became impossible.
THE COURT: What year is this?
MR. MITTEL: 1976, Your Honor. There's an exhibit. It's Defendants' 67. Yes, 67, in which Mr. Wasserman writes to Miss Seckler and Mr. McMurtry. [page 806]
THE COURT: Yes. Go ahead.
BY MR. MITTEL:
Q. Did you know where Miss Seckler had put the library?
A. No, sir.
Q. Did she ever tell you?
A. No.
Q. Did you go and get it in April of 1979?
A. April of 1979?
A. When it disappeared.
A. Oh, I'm sorry, sir.
No.
Q. Did you send anybody to go and get it?
A. No.
Q. Had you made any inquiries of anybody as to whether they might be willing to go and get it from her?
A. Oh, no.
Q. Do you know Tom Whitmore?
A. Yes.
Q. When did you first meet him?
A. Tom Whitmore -- I know Tom Whitmore as the owner of a science fiction bookshop in Berkeley. I've known him off and on for some time.
As to this material that was discovered in his basement, that was quite incidental and a very happy [page 807 coincidence.
And I believe that happened about a year ago, or something like that.
The facts indicate it might have been about a year ago.
Q. Had you ever spoken with mr. Whitmore about that material before May of 1984?
A. Not Mr. Whitmore, no, sir.
Q. Had you ever spoken to anybody about the material in his basement before that?
A. Well, that's a very good question, sir.
About 1976 or 1977 a certain young man who was a student at the University of California came by our house on San Pablo Avenue in Berkeley --
Q. This is Mr. Root?
A. -- and --
Q. Mr. McMurtry, hold on for a moment.
Is this Mr. Root?
A. I don't recall his name. I remember he was a young man, but I don't recall his name.
Q. Is he the fellow who told you he lived up in Amador County?
A. The person who did -- do you mean Amador County or Calaveras County?
Q. Calaveras County. I'm sorry. [page 808]
A. Yes, Calaveras County.
Q. Thank you.
You think -- let me withdraw that, please.
Was Mr. Heidrick part of your organization in 1979?
A. Yes, Mr. Heidrick has been part of the organization since 1977.
Q. Did he do a lot of secretarial and other related kinds of activities for the organization?
A. I imagine in 1979, secretarial, mostly, like treasury work, but most of which happened to the secretary -- in fact, to this day Mr. Heidrick is involved in the finance and correspondence work, if that's what you mean by "secretarial."
Q. If he prepared important letters or important memoranda that were to be sent out, did you often consult with him about those?
A. I remember he consulted with me about those, yes, sir.
Q. Either way.
A. Either way.
Q. That was the general practice, then?
A. Now important -- it was certainly general practice. It may have been the exception, but I don't recall just offhand. [page 809]
Q. Was the disappearance of the library in April of 1979 an important event in the history of the Ordo Templi Orientis?
A. It certainly was; it certainly -- it threw everybody into confusion.
Q. Do you remember that Mr. Heidrick prepared a report of the disappearance?
A. I don't remember what exactly, but he possibly did.
Q. And if you did, because it was important, would you have talked with him about it and would he have talked with you about it?
A. I presume he would, certainly.
Q. Let me show you Defendants' Exhibit 74-A and ask if you that, indeed, is the report that Mr. Heidrick prepared?
A. On the -- on this, sir, I believe so. To the best of my knowledge, it is the report.
Q. Can you read from the last page of the report, the two lines I've highlighted from the bottom several pages?
A. I certainly will.
"Helen Parsons Smith was a
major suspect."
"Phyllis is the prime
suspect," [page 810] end quote.
Q. Does that refer to Phyllis Seckler?
A. Yes.
Q. And you still share the opinion that is set forth in the report, namely, that Phyllis is the person who took the library, don't you?
A. No. sir.
Q. When did you change your mind?
A. I thought -- I did not change my mind, sir. From the time it was reported as being burglarized, I presume she was correct until sometime later she accused Mr. Heidrick of having taken the library.
At that point it became ridiculous, because that was simply nonsense.
Q. At the trial in Maine, I asked a question:
"And you suspected that she's
the person who caused it to
disappear, don't you?"
Is that correct?
A. Yes.
Q. Your answer was:
"I do now. I did not at that time."
A. That's correct.
Q. Well, this says at least in March of 1984 you [page 811] suspected Miss Seckler?
A. Yes, March of 1984. It sounded reasonable.
Q. Do you now suspect her?
A. No, I do not.
Q. I asked you a moment ago: When did it change?
A. When she accused Mr. Heidrick.
Q. So you now suspect Mr. Heidrick?
A. No, sir.
Q. Who do you suspect?
A. I have no suspects, sir, except it disappeared.
MR. MacKENZIE: Your Honor, I'd move to strike that one portion based on Mr. Mittel's reading from the transcript in which he says:
"Did you believe Phyllis
Seckler caused the library
to disappear."
Is {SIC sb. "If" -weh} that means the same as you're a suspect, there's a theft, when I will retract that. But I think that there is a legal question, as well as "disappear."
THE COURT: Well, I'm not really understanding what you objection is.
MR. MacKENZIE: Well, Your Honor, Mr. Mittel is mischaracterizing the form of the question there. It sounded to me like: Do you believe Phyllis Seckler caused the library to disappear? [page 812]
And in my mind that means she was careless with the way in which she had sequestered it or something along those lines, versus: Did she steal the library, which is a more direct question.
If there's confusion, I'd like to move to strike Mr. McMurtry's response because it does sound a little confusing.
Shall I --
THE COURT: No, I'm going to overrule the objection.
BY MR. MITTEL:
Q. Now, Mr. McMurtry, you've testified that when you left Dublin in 1976 you had a file containing correspondence between Mr. Motta and Mr. Germer?
A. I beg your pardon, sir. I left Dublin in 1964. I went back to Dublin periodically in 1976.
Q. That's what I meant. I didn't mean you moved out.
A. Yes, sir. I -- at some time I did take material out of Mr. Motta's file, yes, sir.
Q. And part of the file which you took was a letter from Mr. Motta to Mr. Germer dated April 27, 1953 which is Defendants' Exhibit 20-A; is that correct?
A. Sir, it's entirely possible that I did, but I don't recognize this letter as being something of that.
But it's entirely possible. I don't know. [page 813]
Q. Do you recollect that that letter was produced to me by yourself and Mr. Heidrick in December of 1983?
A. I do not recall, sir, no.
Q. But it's anyway possible that that letter was in the file?
A. Oh, yes.
Q. Here there other letters like that in which Mr. Motta was discussing his sexual life?
A. Yes. sir.
Q. That's a fairly personal and private letter, isn't it?
A. Yes, sir.
Q. I think you also told me in the past that that letter and others like it were taken out of the files and were shown to other members of the Ordo Templi Orientis?
A. I did not say this letter, sir. I said there was certainly one letter.
I don't remember this one.
Q. A letter like this?
A. Like this in what way, sir?
Q. Discussion Mr. MOtta's sexual life, his sexual organ?
A. That is correct.
Q. How many times do you think that happened? [page 814]
A. What happened?
Q. That the letter was shown around to other members?
A. No more than four times.
Q. And do you remember when that took place?
A. Fairly shortly after I cam back, because I wasn't in Dublin after 1976. And so therefore I had very little occasion to do so.
Q. You took the letter back -- the file back to Berkeley?
A. Eventually, yes, sir. Not necessarily immediately.
Q. It was in Berkeley that that letter was shown around?
A. No, it was in Dublin.
Q. It was in Dublin?
A. By the time I got back to Berkeley, I simply filed it.
Q. And it's your testimony that once you got to Berkeley you never showed it to anybody?
A. I do not recall ever having shown it to anybody. It is very possible I may have, but my memory of it was that it was interesting when we were out in Dublin.
When I came back to Berkeley, I simply filed it. I don't recall having shown it around Berkeley at all.
Q. What made it interesting? [page 815]
A. It's psychological comment in terms of his sexual behavior and things to that effect, which I thought were quite interesting.
Q. Would you like it if you had written a letter like that and somebody showed it around to other people?
A. Sir, if I had written a letter like that and sent it to somebody and somebody offered it back to me and I didn't take it then, nobody can blame the circumstances.
Q. When you said somebody offered it back to you and you didn't take it --
A. I didn't --
MR. MacKENZIE: Objection, Your Honor. I think this is relevant -- irrelevant insofar as this is alleged to have occurred in 1976.
And unless Mr. Mittel can show it happened within one year of the Counterclaim --
THE COURT: Well, the evidence is, in fact --
MR. MacKENZIE: Well, could we get an offer of proof that he can show it happened in 1983 or '82?
MR. MacKENZIE: First of all, Your Honor, I think it's within one year of the date of the filing of the original Complaint --
THE COURT: Well, I think it's -- so I think the Statute of Limitations is held as of the date [page 816] you file the Complaint.
The objection is overruled.
MR. MITTEL: Can we have the pending question, please?
(Record read.)
BY MR. MacKENZIE:
Q. Let me just ask you: When you say if somebody offered it back to you, are you referring to the letters that Mrs. Smith and Miss Seckler wrote Mr. Motta in 1977 when they told him or one of them told him that they had letters of his, and didn't he want them?
A. No, sir. I was talking about myself.
Q. When did you offer it to him?
A. When I wrote to him to take a look at the library.
When he wrote back, he did not ask for his letters. He asked for xeroxes of everything, but not his letters.
Q. So, it's your contention that that letter that you wrote in July of 1976 offered to return to him all of his letters?
A. Yes, sir. It was an open negotiation for the library at that time.
Q. What was there to negotiate about, Mr. McMurtry?
A. Well, the thing that was negotiated was the Superior of the Order had left the library in the [page 817] custody, conservatorship of the representatives of the Order. But there was these questions about who was in charge, if anybody, of the A.'.A.'. and the documents concerning the OTO.
And, of course, Mr. Motta had indicated interest in this sort of thing.
And so I wanted to clarify the atmosphere and thus find out where we all stood in this case.
If we all disagreed with each other, Thelemic-wise, we could negotiate. There was no problem. I did not need his letter. Why should I?
Q. Now, let me just ask you again the question which we got sidetracked from:
If you sent such a letter to somebody, expecting that that person would not be passing it around, would you be unhappy if that person did pass it around?
A. If I sent it somebody and I did not expect them to pass it around?
Q. That's right.
A. How does that relate to the situation, sir?
Q. You weren't here yesterday. But Mr. Motta testified that -- I think your lawyer will confirm this if you want to discuss it with him -- that Mr. Germer was not expected by Mr. Motta to pass that letter [page 818] around.
A. True. That is true. And -- but, on the other hand, Mr. Germer was dead and was -- and we had the Superior Court Order.
Q. Did it say that you could take personal private letters and pass them around?
A. It did not say that on there in terms of one, two three. No, sir.
It said that I had the right and responsibility to conserve the property of the Order as representative, to be responsible for it, which I tried to do.
Q. Do you know if Mr. Heidrick showed the letter to anybody?
A. No, sir.
Q. Do you know if Miss Seckler did?
A. No, sir.
Q. Do you know if Mrs. Smith did?
A. No, sir.
Q. Is it your testimony that if you sent that letter to Karl Germer and Mr. Motta had come into possession of the letter, you wouldn't care if he showed it to me and ten other people?
A. If he wrote to me and offered it back to me, and I didn't take it, then obviously I gave up all [page 819] authorization of it.
MR. MITTEL: If you'll give me just a moment, Your Honor.
THE COURT: Yes, sir.
BY MR. MITTEL:
Q. Mr. McMurtry, the term "Follower" might mean Outer Head of the Order?
A. No, sir. The term "Follower" is a religious statement that's made in the "Book of the Law" is part of our tradition. But it has nothing to do with the essential structure of the Ordo Templi Orientis as such.
Q. At the trial in Maine, Mr. McMurtry, I asked you this:
"Does the term 'Follower' mean
anything in OTO Hierarchy?"
And you answered:
"In the form of OTO Hierarchy?"
And I said:
"Yes."
And you said:
"Not that I know of. This is
a religious question."
And then I said:
"Does that have anything to do [page 820]
with who succeeded who as the
Head of the OTO?"
And you said:
"It might, depending on the
religious sentiments of the
people at the time who would
be involved in electing such
a person."
A. Yes, sir.
Q. So if Mr. Germer believed that the word "Follower" meant his successor, then it might just mean that Mr. Motta was Mr. Germer's successor; is that right?
A. No, sir. It might mean that Mr. Germer was confused.
Q. And do you say that Mr. Germer might have been confused because he was close to dying?
A. No, sir. I did not say that. I did not think that Mr. Germer was close to dying.
Q. Let me show you a new exhibit which is Defendants' 54-B. It's a letter from Gerald Yorke to Karl {SIC sb. "Sascha" -weh} Germer dated October 17th, 1969.
Let me ask you to read the first paragraph of that letter, please.
A. (Witness perused document.)
Q. I mean read it out loud. [page 821]
A. All right. You mean right now, sir?
Q. Yes.
A. Quote:
"There is a man whom you may
remember called Grady McMurtry
who was made a Ninth Degree
OTO by AC, sort of an
inspector" --
There is no capital "i" on inspector --
-- "but subject to Karl's
jurisdiction over Parsons'
and Smith's OTO lodge at
Pasadena. He is to start
a branch of the OTO in
California and is moving
to recover part of the OTO
archives that were stolen
from you and also the
Crowley collection of
Francis Regardie, which may
have been taken by the same
people,"
end quote.
MR. MITTEL: Thank you.
That's all I have on both cross and direct of [page 822] this witness, Your honor.
THE COURT: Thank you.
Do you have any further questions of Mr. McMurtry --
MR. MacKENZIE: Yes, I do.
THE COURT: -- on your redirect?
MR. MacKENZIE: Yes, Your Honor.
THE COURT: Well, both your redirect and cross.
CROSS-EXAMINATION
BY MR. MacKENZIE:
Q. Mr. McMurtry, do you claim to be the Outer Head of the Order?
A. I do not claim to be the Outer Head of the Order except in this sense: There is a practical situation in which I am Frater Superior and Caliph identified by edict of Mr. Crowley and that makes me de facto OHO, but not de jure OHO.
Q. So, if a de jure OHO came along you, in turn, would step down to your place?
A. If a de jure OHO, I certainly would, yes, sir.
Q. Thank you.
Now, Mr. Mittel just showed you Plaintiffs' Exhibit No. 27, which is a June 1946 letter from Mr. Crowley to Karl Germer. [page 823]
Mr. Crowley sent you a copy at the same time. Do you remember that letter?
A. Yes, sir.
Q. That's fine.
Now, would you just read this portion on the second page, the third paragraph from the bottom, beginning "The only limitation," in that paragraph?
A. Beginning "The only limitation"?
Q. Yes.
A. "The only limitation on his
power in California is that
any decision which he makes
is subject to revision, approval
or veto by his sup. {SIC ? --weh}
Q. One of these things that you said in answer to Mr. Mittel was: Didn't Karl Germer -- didn't you need Karl Germer's approval in all matters?
A. No, not necessarily in all matters.
In other words, this -- specifically he did not preclude the revision -- he did not include the part on revision or veto.
Q. And wasn't this letter sent after the letters in which he stated you needed revision, approval or veto?
A. You mean my document of authorization of 19 --
Q. The letter in which he stated that you could act in [page 824] certain capacities, but that you needed that subject to revision, veto or approval?
A. Oh, yes. I believe that's it.
Q. And those were early letters?
A. They were about, I think, -- they were March and April, and that is when --
Q. This is June.
A. So they were earlier, yes.
Q. Thank you.
Now, we were talking about the tarot cards. Did you mean to indicate that the tarot cards were published by Weiser or by Lewellyn?
A. They were published -- that is to say actually they were printed the first time by Lewellyn under contract, publication contract with myself as one owner of the right to publish.
Q. I see. You also said that they had been published in 1917 in Hong Kong?
A. Did I say 1917? I meant 1970, sir.
Q. You stated that you had never been a member of the SOTO?
A. No, sir. I've not been a member.
Q. Are you aware that they have expelled you from the SOTO?
A. I believe I've read that someplace. [page 825]
Q. Concerning -- do you know if Bill Heidrick held any kind of expulsion meetings concerning Phyllis Seckler and -- as a result of this sequestering?
A. I don't know if Mr. Heidrick held them. We may have very well gotten together and discussed the matter and we could have very well have gone to a meeting, but I do not know the terms of the move, for I was the one that was mostly offended.
Q. I'd like to show you Defendants' Exhibit 54-B, which you just looked at, and ask you to read the first sentence of the second or third paragraph: "It looks as if" ...
A. "It looks as if Jean Brayton
and here husband were either
responsible or else have
acquired material after it
had been stolen."
Do you want me to read the whole paragraph?
Q. No, no.
Is that in reference to the 1967 Sascha Germer theft?
A. Just a second, sir.
This was written in '69. '67, yes, sir. That definitely would be because at that time Mr. Yorke would know that I had found material on grades and sex. {SIC ? --weh} [page 826]
Q. Now, you mentioned that you had written Mr. Motta around July of 1976 offering an olive branch.
A. Yes.
Q. I show you Plaintiffs' 51.
Is that the response you received from him?
A. Oh, I see.
Yes, this is the response I received from Mr. Motta.
MR. MacKENZIE: I would just like to read a few relevant portions of that , Your Honor.
THE COURT: May I have the exhibit number?
MR. MacKENZIE: I'm sorry?
THE COURT: The exhibit number again, please?
MR. MacKENZIE: Oh, 51. Plaintiffs'.
THE COURT: Go ahead.
BY MR. MacKENZIE:
Q. He writes:
"It has never been my
intention to claim the grade
of OHO as I have tiresomely
repeated in private
correspondence and stated
in print." [page 827]
That's on page 1, the third paragraph.
On page 2 at the beginning of the third paragraph again he writes -- Mr. McMurtry, I have a question about this for you --
"Don't wave flags of A.'.A.'.
membership of {SIC sb. "at" --weh} me.
Remember I know you, I
met you. As I know
Phyllis ex-Wade,
Ex-Seckler -- McMurtry.
I don't have to be told
what you are. I am the
one qualified to tell you."
How many times had you met Mr. Motta before you received this letter?
A. I have no memory of having met Mr. Motta.
Q. You're aware he claims to have met you?
A. Yes, sir. I'm quite -- I am aware of that.
Q. And that was in 1953, I believe?
A. Well, no, sir.
In 1953 I was in the Korean War, so I couldn't very well have met him.
In 1956 I was back in this country, living in Berkeley, California.
Q. I see. At the bottom of page 2, continuing on to [page 828] page 3, he writes:
"I will rebate your proposal
with a counterproposal. I
want xeroxes of all the
unpublished material in the
thelemic {SIC s.b. "Thelemic" -def} library without
exception. If you refuse to
provide these, I cannot take
you to court at present
because I don't have the
necessary funds."
Is that what you take as a threatened legal action?
A. I believe in another place he said, "Sir, I will sue you."
I believe the words were quite explicit. I don't remember hearing the word "sue" from there.
'I will sue you and I will win," are the words that are in a letter someplace.
Q. And then he writes:
"Only documents from Saturnus,
Tenth Degree OTO, are valid."
He's referring, I believe, to documents of authorization?
A. From Frater Saturnus? [page 829]
Q. Yes.
A. I believe that to be the case, yes, sir.
Q. Now, is there a rule in the OTO that when one Outer Head dies, letters that a preceding Outer Head may have issued become invalid?
A. No, sir.
Q. And he goes on to say:
"And failing this, the OHO will
have eventually to be elected,
but this can only be done by
brethren who can either prove
a legitimate line of succession
or people who I recognize from
their strength of character,
probity and true dedication as
deserving the honor of
participating in the election."
Do you know on what he is basing his right to elect the electors of the next OHO?
A. For supervising the election, no, sir. I do not know what he is basing that upon.
Q. And finally in the bottom of the paragraph he writes:
"I have never named anybody
my OTO representative in the [page 830]
USA. I honestly intend to
have no OTO jurisdiction in
the USA."
MR. MacKENZIE: That's all I have, Your Honor.
MR. MITTEL: I have one question, Your Honor.
REDIRECT EXAMINATION
BY MR. MITTEL:
Q. Mr. McMurtry, let me show you Defendants' Exhibit 33. It's a letter from Mr. Germer to Mr. Motta dated March 20, 1959.
Would you read this paragraph at the bottom of the page, please.
A. You mean the entire paragraph or just --
Q. The whole paragraph.
A. Quote:
"Remember" --
Quote:
--"that burly knight in Berkeley,
as you so beautifully labeled
him sometime ago, how much
promise has yet been plagued by
a silly woman hostile to Thelema
and AC and his {SIC s.b. "a" -def} son. How much [page 831]
should I expect from him and how
deep has he sunk, unless they
have stuck together {SIC s.b. "unless he still pulls himself together" -def}. It is sure
silly,{SIC s.b. "misery" in place of "silly" -def}"
Unquote.
Q. Now, is that paragraph referring to you as the "burly knight in Berkeley"?
A. I presume so, sir, although I don't know of anybody else who ever gave me that title.
Q. Is -- do you now remember that you meant {SIC sb. "met" -pla -def} Mr. Motta?
A. No, sir, I do not.
Q. This doesn't refresh your recollection?
A. No, sir, it does not.
MR. MITTEL: Nothing further, Your Honor.
THE COURT: Mr. McMurtry, you're excused as a witness. You do not need to remain in the courtroom. You may do so if you would, because, of course, you are a party to the case. But anytime you would like to leave or feel you should leave, please feel free to do so.
THE WITNESS: Yes, sir. Thank you very much. I'm feeling fine at the moment. Unless I have to go to the bathroom, I'd like to stay.
THE COURT: Okay. That's fine.
(Witness excused.) [page 832]
MR. MITTEL: Do you want me to resume with Mr. Motta or --
THE COURT: It's up to you. That would probably be the way to do it.
MR. MITTEL: I think that's best. May I have a moment to turn this around?
MR. MacKENZIE: I would probably have an hour or so of cross-examination. I want to make sure we get him on today. He's leaving tomorrow.
MR. MITTEL: Let me call Mr. Wasserman.
THE COURT: That's fine.
Would you come forward, please, Mr. Wasserman?
Have a seat. You're still under oath from your prior testimony, Mr. Wasserman.
Mr. Wasserman: Yes.
JAMES WASSERMAN,
called as a witness by the defendants, having been previously duly sworn, was examined and testified as hereinafter set forth.
DIRECT EXAMINATION
BY MR. MITTEL:
Q. Mr. Wasserman, when you went to California -- and please excuse me if I'm repeating myself from the other day -- but I just wanted to make sure I covered [page 833] everything -- you had a conflict of interest, didn't you?
A. Would you be more specific, Mr. Mittel?
Q. You went on behalf of Mr. Weiser, who you had indicated was at lest involved in some questionable activity as respects the Aleister Crowley copyrights.
And you were also going carry Mr. Motta's power of attorney. And Mr. Motta and Mr. Weiser were somewhat in conflict, and as a result of that you had a conflict of interest, didn't you?
A. No. What the -- the trip that you were describing was a completely dual-purpose trip. I was on a sales trip for Weiser and I think I was giving the four days to pursue this OTO matter.
Now, when I referred in my deposition to a feeling of a conflict of interest I was referring to a different issue.
I don't believe there was any question in my mind of a conflict of interest in the four days that I was dealing with the Thelema situation.
Q. At the trial in Maine after reviewing these particulars, I said to you on page 218 of the transcript:
"And all of the things that
we have just talked about [page 834]
combined to make you aware
of the fact that you had a
conflict of interest when
you were in California, did
they not?"
And you said:
"That and several of the ex-
periences that I had in
Brazil."
And I said:
"So the answer is 'Yes'?"
And you said:
"Yes."
Is this no longer the case, you no longer think you had a conflict of interest when you were out here in 1976?
A. Between my professional position at Weiser and my representation of Mr. Motta?
Q. That's right.
A. I guess you just read that I said it then. If you remember, I had given notice to Weiser that I was leaving because of what I felt was conflict of interests at that time.
I really am not prepared to say. If I said it in Maine, I was under oath and it absolutely still [page 835] applies.
I don't remember having made that statement in Maine, but -- and obviously it still applies since obviously what I said my state of mind was.
Q. When you came to California, you changed sides, didn't you?
A. No, I did not.
And you said that before in this courtroom. It's the first time that you said it, that I recall, and I did not change sides.
Q. So when Miss Seckler says you changed sides, she's wrong?
A. She's wrong. What I did and very correctly tried to do was to being the two parties together.
I think that my advice would have prevented the tragedy that we are undergoing right now, both of us depleting our resources and using our energies to fight among ourselves.
There are probably 4,000 on the entire planet that have any awareness of the "Book of the Law" and the 10 more serious are facing each other in this courtroom.
I find that a real tragedy, Mr. Mittel, and I have for years.
Q. I think you said that you knew of Mr. McMurtry's claim to be the Caliph before you went to California? [page 836]
A. Yes, I did.
Q. And you also said that you did make an arrangement with Mr. McMurtry and Miss Seckler to copy the library for Mr. Motta?
A. Yes, I did.
I'd also note, if I might add, that in the brief that I prepared for the New York copyright lawyer, Mr. Mishkin, I did not include Mr. McMurtry's claims in that brief. So, I think that somewhat validates my testimony that I wasn't concerned with his claims prior to meeting him.
Q. You're familiar with the "Holy Book of Thelema" --
A. Yes.
Q. -- which is Defendants' Exhibit K?
A. I am very familiar with it, sir.
Q. Did you have any role in the preparation of this book?
A. I have, yes.
Q. What did you do; would you tell us?
A. Yes. William Breeze, Richard Gernon and myself put that book together for Mr. Weiser. We gave him that book for free. We did all the typesetting ourselves.
I did all the artwork myself. We did the editorial work on it together. And that is one of the finest accomplishments of my life. [page 837]
Q. Did you prepare the synopsis?
A. Did I personally?
Q. Yes, sir.
A. I worked with Mr. Breeze. Mr. Breeze had primarily editorial control of it, but I was definitely one-third editor.
Q. Did you prepare the preface?
A. I assisted in the preparation of the preface, yes.
Q. Who was primarily responsible for the preparation of the preface?
A. Well, Mr. McMurtry had given us a direction that he wanted to see the preface take. He wrote about -- if I'm not mistaken -- a three-page pracia {SIC s.b. "precise" -pla} (phonetic) of that.
And Mr. Breeze did the primary writing of it, but he was subject to incredible editorial criticism from Mr. Gernon and myself. So I definitely had a hand in it, by all means.
Q. So the idea was Mr. McMurtry's in at lest summary form, and the flesh and bones of the preface is yours and Breeze's and Gernon's?
A. Oh, by all means. Bu all means.
We followed, or Mr. Breeze followed the very common practice of this type of publication in ascribing the authorship to our leader. [page 838]
There are zillions of books written under the name Herman Sweitzer (phonetic), and this sort of thing, but we ascribed the direct authorship to Mr. McMurtry, but it was our work and with his permission.
MR. MITTEL: That's all I have of this witness, Your Honor.
MR. MacKENZIE: I have no questions, Your Honor.
THE COURT: Thank you, Mr. Wasserman. You're excuse.
THE WITNESS: Thank you, Your honor.
THE COURT: Again, sir, as a plaintiff, you are entitled to stay for the rest of the day. But as far as your obligations as a witness, they are now discharged.
THE WITNESS: I must leave tomorrow, but I'd very much like to stay.
(Witness excused.)
THE COURT: Well, my clerk isn't here, and there's two cases at 1:30.
So I think we'll proceed ahead, if you will.
MR. MITTEL: Mr. Motta, would you retake the stand, please?
MARCELO R. MOTTA,
called as a witness by the defendants, having been [page 839] previously duly sworn, was examined and testified further as hereinafter set forth.
THE COURT: Mr. Motta, you're still under oath from your prior testimony.
THE WITNESS: I understand.
DIRECT EXAMINATION (Resumed)
BY MR. MITTEL:
Q. All right. Mr. Motta, yesterday we were talking about various claims that you libeled the plaintiffs; do you remember that?
A. Yes, sir.
Q. And I now want to suggest another one and ask you your opinion of it.
They claim that you libeled Mrs. Smith by saying that she repeatedly pirated oto property.
I'd like you to explain, first of all, if that's the truth. And, secondly, why is it the truth?
A. It is the truth.
Q. And tell us why, if you would, please?
A. I do not know if plaintiffs were aware of this fact or even studied it, the documents, since they have so blatantly offended against all the conditions of those documents. No one can publish OTO books without the direct charter from the Outer Head of the Order.
That was why I asked Mr. Wasserman to look -- [page 840]
THE WITNESS: Am I going too fast for you?
THE REPORTER: No.
THE WITNESS: -- that was why I asked Mr. Wasserman to make sure that they had charters of documents of authority from either Mr. Germer or from Mrs. Germer.
BY MR. MITTEL;
Q. And then when you say you asked him to make sure, you mean in 1976?
A. When I sent him to California, yes.
Q. And he did find out if they did?
A. If they did, they have had nine years, I think, to present those documents, and they have no done so.
Q. Is there a another reason as well as -- well, I take it, then that since she doesn't have such a document. it's you contention that she can't -- not only your contention, but the law of Thelema is that she cannot publish; is that right?
A. She can publish that in private domain if she pleases, but she cannot publish material that has been unpublished before without permission from the Outer Head of the Order.
The members of the Ninth Degree do not, as such, function as Lodge Masters of as Lodge members, except anonymously. [page 841]
The fact that the Ninth Degree is a mystical degree, you must have a charter for an administrative or temporal position in order to be able to function, oh, temporarily -- I do not know if I have the right adverb, but that's what I meant.
Q. Let me ask you another question; There was testimony that after the plaintiffs recovered the library in Calaveras County that mrs. Smith sold duplicate copies of works from out of the library.
Do you remember that testimony?
A. Yes.
Q. Is that conduct also a misappropriation of Order property?
A. Yes.
Q. And explain why, if you would, please?
A. Because in the first place if you have duplicate books in libraries of OTO, those books should be used to establish a circulating library, that members who live out of town or who live far away will be able to use, sent to them by mails.
It has always been the aspiration of everybody concerned to have such a circulation, circulating library formed.
Besides those books were should prior to asking members of the oTO in other countries if they needed [page 842] such books in their libraries. And if they did need such books in their libraries, then those books should have been sent to them.
Q. Is that what the Society does with duplicate copies of Crowley works?
A. Of course, when a student asks for a book and we have a copy of the book available, we mail it to him or her so he or she can read it. We don;t have many duplicate copies of books.
Q. There was some testimony from Miss Seckler that the following statement was directed at her:
"Although I have" --
I'm quoting now from the Complaint --
"Although I have said that
material put out by thieves
like Regardie, McMurtry,
Helen Smith is suspect" ...
Which McMurtry are you referring to in that statement which is in "Equinox" 5, No. 4?
Let me show you a --
A. Excuse me, Mr. Mittel.
There is no question about it. I would not have used the -- just the word Mr. McMurtry, if I were referring to Miss Seckler.
Q. You were referring to Mr. -- [page 843]
A. I was referring to Mr. Grady McMurtry, yes.
Q. Now, then, are also some allegations about James wasserman in which you say:
"James Wasserman disobeyed
his instructions and delivered
the property into the hands of
thieves and has been instrumental
in the piracy of OTO copyrights."
Now, you've heard the testimony about what Mr. Wasserman did when he went to California and about what he was doing when he worked at Weiser.
You've also given some testimony on those points yourself.
Does that testimony summarize what you believe in order to make that statement?
A. If you need an amplification, I will be glad to provide it. Perhaps I did not understand your question.
Q. Well, you heard Mr. Wasserman testify about what he did when he went to California. You yourself -- and also about the instructions that you gave him.
And I think you've heard him testify about his involvement in the misuse of Crowley copyrights by Weiser.
You've also testified about those same subjects. [page 844]
And what I'm asking is: Are those pieces of testimony the basis -- and the facts that surround them -- the basis for this statement in the book that they claim to be libelous?
A. Well, I think the documentation and the known facts are very greater.
Q. Is that statement true?
A. I think so.
Q. And now there's a statement that says:
"Germer on his turn tested
Grady McMurtry's loyalty for
decades and never really
believed him."
Is that true?
A. Yes.
Q. And what do you rely on to say that that's true?
A. First, my personal conversations with Mr. Germer about Mr. McMurtry.
Second, my personal conversations with Mr. McMurtry, which must have been so disturbing to him he seems to have forgotten completely.
Third, the facts that I asked him -- and I asked him again and again and even Maine I still hopped that he would bring and show a charter or permission from Mr. Germer, and he did not. [page 845]
MR. MITTEL: Would this be a good place to stop?
THE COURT: We'll take a recess until two o'clock.
MR. MITTEL: May I leave this here?
THE COURT: Yes, you may.
MR. MITTEL: You may step down.
(Proceeding adjourned temporarily at 1:30 to 2:05 p.m. for intervening matters.) [page 846]
Friday, May 17, 1985.
2:10 p.m.
FIFTH DAY -- FURTHER PROCEEDINGS
THE COURT: Are you ready to proceed, Mr. Mittel?
MR. MITTEL: Yes, Your Honor. Thank you.
MARCELO R. MOTTA,
resumed the witness stand and testified further as hereinafter set forth.
DIRECT EXAMINATION (Resumed)
BY MR. MITTEL:
Q. Mr. Motta, the last statement -- well, I'm sorry. It's not the last statement. It is the following, at least, of the ones that you -- in which you allegedly libeled the plaintiffs.
A. I'm sorry, sir. I'm not hearing you well.
Q. What I said was -- let me now read you the last of the statements that involved alleged libels.
"I do not recognize Mr.
Mcmurtrys right even as a
human being. He allowed
Mrs. Sascha Germer to die
slowly of malnutrition just [page 847]
so he could get his hands
on material that he is not
qualified to handle
intelligently, morally or
spiritually."
How do you -- or what makes you think that he allowed Mrs. Germer to die?
A. I had a letter from Mr. Wasserman that made that point quite clear. That came with a letter that Mr. McMurtry wrote me in which he had described the state of the house in which Mrs. Germer died.
And Mrs. Germer was a nationality -- she was from a prestigious Jewish family in Vienna. I met her personally. She was a woman who took great pride in having a good appearance and in keeping herself clean and all the house in good condition. That her house would be in a state it was, it meant that her mind had deteriorated.
And since she had written me once and, unfortunately, I did not believe her at the time, that she was living on $30 a month, one dollar a day, my reaction to that whole situation is too much to put into words very coherently.
Q. Was part of the basis of your belief the fact that Mr. McMurtry was not sending money to the Germers? [page 848]
A. Yes. And this was confirmed in Maine in Mr. McMurtry's deposition.
MR. MacKENZIE: Objection, Your Honor.
THE COURT: I'm sorry. What?
MR. MacKENZIE: Objection to the last. That's hearsay.
THE COURT: I'm sorry. What's hearsay?
MR. MacKENZIE: That Mr. Motta states that Mr. Grady McMurtry confirmed during his testimony in the State of Maine that -- something or so.
THE COURT: Well, that portion may be stricken. If Mr. Mittel wants to go into it, he may.
BY MR. MITTEL:
Q. And during the period after mr. Germer's death, were you sending money or had you arranged to send money to Mrs. Germer?
A. The royalties from "Liber Al" {Sic s.b. "Liber Aleph" -pla. "Liber AL" -def} were given to me by Mr. Germer. And when he died and -- Tremando (phonetic) of Samuel Weiser, Incorporated, wrote me and asked me what I wanted to be done with the money. I told him to send the royalties to Mrs. Germer.
Q. This statement also says that:
"Mr. McMurtry was married to a
woman who was repeatedly
accused by Mrs. Germer of having [page 849]
been instrumental in robbing her."
Now, just hold on one moment.
Is that the same woman who is identified at the beginning of these alleged libels as Phyllis McMurtry?
A. Yes.
Q. Mr. Motta, let me show you Defendants' Exhibit K, "The Holy Books of Thelema."
Is there a portion of this book that was written by Aleister Crowley and has not previously been published?
A. We intended a deletion {SIC} of publication of the United States copyrights law. There are two books here that have never been published before.
Q. Why don't you tell us what they are and what pages in that book they begin.
A. "Liber Trigrammaton," T-r-i-g-r-a-m-m-a-t-o-n, supposedly beginning at page 43, and "Liber Ararita," A-r-a-r-i-t-a, supposed to begin at page 215.
Q. Now, when you say those two items have not been previously published, do I understand that Mr. Crowley did have them either typed and bound or printed and bound at one point in time?
A. They were -- each of them, one of the books of one particular initiation of the A.'.A.'., he had them bound [page 850] in vellum and done in vellum.
They were to be delivered only to members of the A.'.A.'. who reached that particular grade and needed that particular book.
Q. Have you ever seen that particular edition?
A. I have a copy -- excuse me -- I do not have copies of those books, but I have seen them and I have copies of tow of the other books, which were printed and delivered in this way.
Q. Do you know --
A. I saw -- I'm sorry.
Q. Do you know how many copies Mr. Crowley had prepared?
A. I do not know. It is possible that they are of the Ox and maybe the other people can talk about it, but I doubt extremely that more than a 100 copies of any of those books was ever printed.
Q. do you know if they were sold to the general -- or put on sale to the general public?
A. Not by us.
Q. What about Mr. Germer?
A. When I say "us," I included Mr. Germer and Mr. Crowley.
Q. And by "those books," I was referring to the "Liber Trigrammaton" and the "Liber Ararita" which you mentioned. [page 851]
A. "Ararita", yes.
Q. Neither of those books have ever been on public sale by the Ordo Templi Orientis?
A. Never.
Q. Did you give Samuel Weiser, Incorporated any permission to publish that book?
A. I think I made a mistake.
There is another book that has never been published before.
Q. What's the name of that and what page does it appear on?
A. It begins on page 7 and it's called "Liber Liberi", with "i," at the end, "Vel", V-e-l, "Lapidis"' L-a-p-ii-d-i-s "Lazuli", L-a-z-u-l-i. Of this one I have a copy of the original private printing.
Q. And does it have any indication inside that it's a limited edition or a private printing?
A. Yes.
Q. What does it say, if you recollect?
A. It has a description of this fact, that it's supposed to belong to a member of that particular grade and there is a line at the bottom where the member can sign his booklet or her booklet.
Q. I had asked you if you or anybody in the Society Ordo Templi Orientis had given permission to Samuel [page 852] Weiser, Incorporated to publish that book you're holding in your hand, the "Holy Books of Thelema"?
A. No, sir.
Q. Did either you or anyone associated with the Society Ordo Templi Orientis give permission to mr. McMurtry or anyone associated with the organization to which he belongs to take part in the publication of that book?
A. Not to my knowledge.
Q. Was Martin Starr at the trial of the case entitled Marcelo Motta versus Samuel Weiser, Inc. in Maine?
A. Yes, sir.
Q. Did he review the documents which were offered in evidence in that trial?
A. Perhaps it would be better to ask him this question, but knowing Mr. Starr's active mind and due to the fact that he had total liberty on my part to look at any documents he wanted at that time, except one, I should think so, yes.
Q. He had a curious and inquiring mind?
A. Yes. And he was permitted to make copies of anything he wanted.
Q. And was he permitted -- did he -- I'm sorry. Was he interested in the type of documentary material that forms the basis of the differing claims to be the Outer [page 853] Head of the Ordo Templi Orientis or history of the Ordo Templi Orientis?
A. Tremendously. I believe it was -- I do not know if it is still his intention to write a history of the order and a biography of Crowley.
Q. And had you known if he had access to those documents before the trial in Maine actually began?
A. I would not know for sure, but when he was at my place in nashville he was allowed to copy anything he wanted.
Q. And did he spend time looking at the documents that are represented -- were relevant to the trial in Maine?
A. Yes. Many of them he obtained for us himself.
Q. Now, do you know if Mr. Germer had any employment activity after you met him and while he was the Outer Head of the Ordo Templi Orientis?
A. Do you mean employment as for hire?
Q. Employment in any kind of a way at all other than as the Outer Head of the Ordo Templi Orientis?
A. No, sir. He had --
Q. Do you know if he --
A. He had no source of income except his position.
Q. What about Mr. Crowley? Did he ever have any employment of outside income other than what he derived from being the Outer Head of the Ordo Templi Orientis? [page 854]
A. I believe he sometimes had a meager income from the books that he managed to get published.
And once or twice he took a job just to learn something about life, I think. But normally, no.
He depended -- after he spent his fortune, he depended entirely on the charity of the contributions of members.
Q. And Mr. McMurtry is wearing the ring. In fact, he's wearing two rings. Does one of those rings have any significance in terms of the Ordo Templi Orientis?
A. I do not know if Mr. McMurtry is still wearing the particular ring that he wrote about in his -- one of his newsletters, if I'm not mistaken. He may by now have sold it as a curiosa. But if he has not done so, he is still wearing that ring of the Office of the Outer Head of the Order.
And he has written that this ring is the same ring that the master wore at the Temple Present (phonetic) to identify himself to students or -- himself to students, which is a very strong statement to make.
Q. Are you familiar with such a ring?
A. I -- Mr. Germer put it in my hand once.
Q. And does the wearing of it signify that the wearer is the Outer Head of the Ordo Templi Orientis?
A. No. It is not necessary to wear that ring, other [page 855] than Mr. Germer never wore it, but he belongs ...
Q. Should someone who is not the Outer Head wear the ring?
A. Of course not. And I do not know for sure if it belonged to Mr. Germer or if it belonged to the Order. But it definitely did not belong, either way, to Mr. McMurtry.
MR. MITTEL: If you'll give me just a minute, Your Honor.
THE COURT: Sure.
MR. MITTEL: That's all I have of Mr. Motta.
THE COURT: Thank you.
Cross-examination, Mr. MacKenzie?
MR. MacKENZIE: Yes.
CROSS-EXAMINATION
BY MR. MacKENZIE:
Q. Mr. Motta, after hearing some of he things you said and reading some of the books, I come to the conclusion that you feel you know people pretty well. Is that a correct assumption?
A. I'm sorry. Could you repeat the last part? You spoke a little too fast for me.
Q. I'm sorry.
Having heard some of the things that you've [page 856] said and seeing some of the letters and so forth, I'm of the conclusion that you know people pretty well. You can gauge them and judge them?
A. I do my best.
Q. Well, do you think you're pretty good at it.
A. I -- I used to think I wasn't, but over a period of 20 years, judgments that I have made and adopted usually came to an affirmative conclusion. So these days I'm a little less wary, but I do make mistakes.
Q. Well, your description of Miss Seckler as a woman with an iron hand and a velvet glove --
A. Steel hand.
Q. You still have that feeling?
A. Harder than ever.
Q. How often have you met her?
A. Oh, I met her -- I spent a night at her house. And afterwards I met her at least once when she went to Barstow.
And at that time we talked about -- I asked that we resume publication of the "Equinox" and she refused.
Q. That's in the 1950s?
A. Yes. Well, it was about the same period after I had been at her home. I spent my vacation in California that year. [page 857]
Q. Have you met her since the 1950s?
A. No.
Q. Now, you called Grady McMurtry a "burly knight."
As I understand that, you met him in the 1950s?
A. At the same time that more or less -- at the same period of time that I met Mrs. -- Miss Seckler.
Q. And have you met him since the 1950s?
A. You mean socially, sir?
Q. Well, in person.
A. Unfortunately, yes.
Q. Now, I don't mean the Main {SIC s.b. "Maine" -def} trial.
A. Oh, no. No.
Q. Do you need a charter in the Order to initiate?
A. In the OTO?
Q. Yes.
A. Definitely.
Q. Definitely?
A. Except for the Ninth Degree.
Q. The Ninth Degree does not need a charter to initiate?
A. No, you are supposed to have an heir in that degree. It's recommended that you should transmit that degree to someone else.
Q. And where is that stated? [page 858]
A. It's part of the injunction -- it's somewhere in the OTO rituals, but I do not know where. I identified that in Maine during the trial, but the book's not here with me.
Q. Are you aware that the plaintiffs contend that you do need a charter for initiation even if you are at the Ninth Degree level?
A. Will you repeat that a little more slower, sir?
Q. Yes. The plaintiffs contend that you need a charter to initiate even if you are a Ninth Degree OTO member?
A. In that case, Mr. McMurtry could not initiate even at that degree.
Q. Well, how do you handle their contention that you need a charter for initiation at the Ninth Degree? Do you believe that's erroneous?
THE WITNESS: Should I wait until --
THE COURT: No, go ahead.
THE WITNESS: Would you define what you mean when you say a "charter'" sir?
BY MR. MacKENZIE:
Q. Well, I'[m thinking of some kind of a piece of paper of some sort.
A. There's a piece of paper that I signed in two copies when I became a member of the degree, but you do not need that to initiate someone in the degree once you [page 859] have the knowledge of a degree. That's why the paper is kept completely secret.
And the paper itself that you sign does not specify that you need permission for that degree.
That degree is the maximum magical and mystical degree of the OTO.
Once you have it, you know what your responsibilities are, provided you are willing to live up to them.
Q. And you have such a paper?
A. I had "Emblems & Modes of Use" and I have the knowledge.
My copy -- remember the paper that you signed, one copy stays with the person who gives the degree and the other you take.
My copy was lost in the United States when I went back to Brazil and could not recover it. It was in a -- how do you call that? -- One of those places, the kind of place where they say you put the books and I couldn't come for it, and it was sold or destroyed --
Q. So --
A. -- along with a big collection of books.
Q. So you didn't have a copy of your initiation?
A. No, I don't.
But you don't need a copy of the initiation. [page 860]
Q. But you do if you want to prove you got initiated?
A. No. Members of the Ninth recognize each other simply by talking to each other.
Q. I think it's clear that the plaintiffs don't recognize you or you the plaintiffs.
A. Will you repeat that please, sir? I mean the last part that plaintiffs do not recognize me -- I mean, I know, and I do not care. It's not true that I do not recognize the plaintiffs, if that's what you're saying.
I know the plaintiffs have the Ninth. They also know that I have it, but they lie under oath, which I do not.
Q. And I'm asking you for some piece of paper that shows that. And as I understand it, you say that you don't have such a piece of paper?
A. Sir, the only piece of paper I have, I would never show you.
Q. You're aware that your attorney was requested to produce any papers that you have for support of your claim?
A. Sir, this paper was given to me under an oath of utmost seriousness to keep it completely sacred and never make it public. And I would die before -- sorry to sound so dramatic -- but I would die before I would give it to anybody. [page 861]
Q. Are you speaking of the "Mode and Emblems"?
A. Yes.
Q. I'm speaking of the other piece of paper you signed.
A. It's insignificant.
Q. But you don't have a copy of it nonetheless?
A. No.
Q. Now, you say that you do need a charter in order initiate as a Ninth Degree?
A. Only in the Ninth Degree, only the secret of the Ninth Degree. And I'll say more:
The person to whom you give does not have to be a member of the OTO.
Q. Well, I'd like to show you Plaintiffs' Exhibit No. 118, which is the "Secret Rituals of the OTO" that's been discussed here, a book by Francis King, and ask if you would look at the second page which is page number 90. If you will just read the portion that I have marked in the left column, if you would just read it to yourself. If you just read it to familiarize yourself. If you are familiar with it, I'd ask you a question.
A. All right. Just a minute, please.
I have not {SIC ?} read it.
Q. Let me read it to you, the part that I'm thinking about. It's on the eleventh line. It says: [page 862]
"I will not initiate or
purport to initiate' --
Excuse me, the line before that --
--"without a regular
charter from him or I
will not initiate or
purport to initiate any
person into any association
of any kind or administer
any ceremony"?
A. Yes.
Q. Does that not say you need a charter to initiate?
A. Are you talking about the Ninth, or are you talking about the normal OTO degrees?
Q. I'm talking of the Ninth.
A. No, this has nothing to do with the Ninth. This is an OTO in the Third Degree of the OTO. This has absolutely nothing to do with the Ninth.
Q. Does the Ninth include the lower degrees so that when you are a Ninth, you subsume the rules of the lower degrees?
A. As I said before, the secret of the Ninth could be given to anyone who is able to understand and perceive it.
And the person does not have to be a member [page 863] of the OTO.
Yes, the entire purpose of the rituals of the OTO is to prepare the initiate, the candidate, of either sex, to understand this final secret, when it's finally revealed confidentially to him or her.
Q. Let me stop you right there.
Where does it say that you can initiate as a Ninth Degree without a charter? How do you know that?
A. I would repeat, sir, that as a member of the Ninth Degree you cannot initiate anyone except in the Ninth Degree. You cannot -- you cannot run a lodge of the OTO even if you are a member of the Ninth without a charter.
Q. I understand that. I'm speaking of the initiation.
A. Which initiation?
Q. Initiations by Ninth Degrees, where does it say that a Ninth Degree can initiate without a charter? How do you know that?
A. It's -- sir, let us understand that we're talking about initiating someone in the Ninth Degree as -- I assume that's what we're talking about.
Q. I'm speaking about a Ninth Degree person who is initiating someone else.
A. In a lower degree or in the Ninth?
Q. Well, you tell me if there is a difference.
A. I have just been telling you there is a difference. [page 864]
The Ninth Degree is a mystical and spiritual understanding of particular --
Q. And my question remains:
Where did you draw your answer from? How do you know this is so?
A. It is word of mouth, passes from initiator to initiate.
Q. That's very convenient.
MR. MITTEL: Objection. Move to strike the comments of counsel.
THE COURT: They may be stricken.
BY MR. MacKENZIE:
Q. And what happens if -- well, how do you mean deg -- who can initiate, the Ninth Degree, and who else, anyone else?
A. Are you talking about the Ninth Degree initiating in the Ninth Degree or are you talking about in lower initiations?
Q. Who in the OTO can initiate? At what degrees can a member --
A. Can initiate in what degrees?
Q. If i want to initiate someone into the Second Degree --
A. You must have a charter for that purpose.
Q. Can anyone with a charter initiate, or can it only [page 865] be certain people with certain degrees with charter?
Can a Fourth Degree with a charter initiate?
A. Within the limits of the charter, yes. Suppose he or she has a charter.
Q. It was my understanding that Third Degrees and Ninth Degrees with charters are the only people who can initiate.
Are you saying that is incorrect?
A. The Outer Head of the Order, by what American structures of government are accustomed to, is an absolute despot.
However, he or she is supposed to be an enlightened despot who can be deposed if he or she runs amuck.
What I'm trying to say is that it depends on what the Outer Head of the Order decides to do.
Q. Which Outer Head of the Order decides that Ninth Degrees do not need charters to initiate?
A. Since the beginning of the OTO Ninth Degree members have never needed a charter to initiate in the Ninth Degree. But any member of the OTO, no matter what his or her grade, no matter whether he is a Ninth Degree or not, cannot initiate without a charter into the grades below the Ninth.
Q. Is the text that I showed you from the Ritual book, [page 866] Plaintiffs' 118, correct otherwise, that portion that I was addressing?
A. I cannot say that it is completely correct, because I have not compared it with the few originals I have in my hands.
I think your clients would be in a better position to tell you that than myself.
But in this particular instance, I would be willing to say that those rituals that were printed are almost in complete detail the rituals that Aleister Crowley should never be printed at any time.
Q. What happens to someone if they do initiation without a charter and if they are not in the Ninth Degree? Is there a punishment?
A. You are a member of the OTO?
Q. Yes.
A. It would depend on his or her lodge master or his or her immediate superior, who in that case would be the National Grand Master General.
Q. Well, could somebody be expelled for doing that?
A. Not necessarily.
Q. But could be?
A. Yes.
Q. I think you relied on a letter from Sascha Germer in which she says: [page 867]
"Have you read the charter
which was sent to you on
April the 20th?"
Are you familiar with a letter such as that?
A. Yes.
Q. Now, when you told me you had a document that had been lost, is that what she, in turn, is referring to?
A. It must be a letter that your clients conveniently produced after the Maine trial was over, yes.
Q. No, -- I'm asking if the charter that she is referring to in the letter is the one that you said you signed when you were initiated?
What is she talking about when she talks about --
A. She -- the ting I signed when I was initiated in the Ninth Degree is not a charter.
Q. Then why is she writing to you to ask if you got a charter?
A. She is referring to a letter that I never received after that your clients finally produced.
Q. Is that a letter a charter?
A. In that letter -- except the conditions that were defined in it.
Q. Am I correct in assuming that you are defining a letter as a charter? It's a simple letter, stuck in the [page 868] mail? That's what a charter is?
A. Mr. MacKenzie, had your clients been made -- been able to produce as evidence a letter like that, we wouldn't be here today.
Q. Well, let me show you Plaintiffs' Exhibit 54. That's a letter we were talking about. This is the April 20th, 1962 letter.
Now, that letter --
A. It is the only letter that Mr. Germer ever wrote me in official OTO, as can be seen by the annotation at the top signed his name which is small, as outer head of the Order, and which is great is -- are difficult to seen in the copy, yes. I never received this letter that Mrs. Germer was referring to.
Q. Okay. Now, do you see that second paragraph:
"I am prepared to give you a
charter for a lodge to work
only the First Degrees."
A. That's correct. And you may also say -- notice it says:
"I give you many other rituals,"
which does not mean just the rituals of the First Degrees.
Q. HOw do you know that?
A. Because if it were just the three, he would not use [page 869] the work "many."
Q. And why didn't he give you a charter for more than three degrees?
A. That was his business.
Q. You don't know?
A. I believe that what he wanted to do is make sure. He had a very bad experience with Kenneth Grant.
Q. Well, if you had higher rituals given you, then why didn't he allow you to work four or five degrees?
A. That was his privilege. His experience, his spiritual experience and you can -- and I did not presume to criticize it.
Q. Do you believe that this letter is a charter?
A. I believe -- I'll leave that for the Court to decide.
Q. I would like to have your opinion.
A. But I repeat: If you clients could have shown me a letter like this, I would not be here today.
Q. Why --
A. {SIC, sb. "Q. "} Now that you've seen that letter, what does that tell you then? What do you mean?
A. What do I mean, or what does the letter mean?
Q. Let me ask you this: Is this a charter?
A. It is an offer of a charter --
Q. Under certain conditions -- [page 870]
A. -- that I accepted.
Q. -- that you were to --
A. And I am willing to work as Grand Marshall of the lodge, yes.
Q. Let me read to you the bottom paragraph:
"Write me, son, about these
points. And if we are clear,
I will send you a charter and
whatever documents you need
such as the first rituals."
A. Um-hum.
Q. It sounds like now you didn't have the rituals.
A. I never copied them. He showed them to me, but I never copied any of them. I read them. As a matter of fact, I read all of these that there are and the secret documents of the Ninth, as well, and of the Eighth, as well.
And I read the entire function in this, the jurisdiction, except -- but I did not wish to accept them at the time.
Q. Well, isn't it apparent that other people had read the rituals, as well? It didn't make them OTO members did it?
A. I do not know exactly what you're saying. I mean, what kind of "other people"? [page 871]
You mean candidates to A.'.A.'., to whom Crowley showed these rituals?
Q. Not OTO members had previously seen rituals; isn't that correct?
A. Some A.'.A.'. candidates had been shown the rituals by Crowley, yes.
Q. Is it your understanding that seeing the rituals does not mean that you are an OTO member?
A. No, but being initiated in the Ninth means that you are an OTO member.
Q. And you don't have any proof that you were initiated in the Ninth; isn't that correct?
A. I have proof of that initiation, but I am not willing to provide it for curiosity. However, the real proof, which is my life, which can be compared to the lives of your clients very easily.
Q. We will come to that shortly.
How much time after this letter was written did Mr. Germer die?
A. Approximately seven months after.
Q. So let me show you Plaintiffs' Exhibit 55, and that is a letter to you from Sascha Germer, is it not, --
A. Yes, it is.
Q. -- in which she says:
"Did you receive a letter of [page 872]
April the 20th, '62"?
A. She does not refer to any letter; she refers to the charter.
Q. Sent to you on April 20th, 1962?
A. Exactly.
Q. And you believe a charter was sent to you on April 20th and not this letter?
A. She meant that letter.
Q. She meant that letter. So she was mistaken in calling it a charter, was she not?
A. No, because she knew perfectly well that her husband would not have sent the letter to anyone unless he was willing to give them a charter.
Q. Subject to certain conditions?
A. Subject to certain conditions, because he was writing to me about these points later and the April letter -- I'm sending the charter, correct, but rather the condition depended upon my acceptance, if I accepted.
Once that had been laid out, then everything would be okay.
Q. Did you tell us that you did recognize Grady McMurtry or you do recognize Grady McMurtry as Ninth Degree?
A. I do not recognize him as a member of the OTO [page 873] anymore.
Q. Do I understand you have expelled him?
A. Yes, exactly.
Q. Was the Ninth Degree your expulsion?
A. Yes.
And he can still use his secret, if he could use it.
Q. Well, is it part of your belief that the Ninth Degree has to, before that Ninth Degree dies, impart to another person the secrets of the Ninth Degree before they die?
A. Are you talking about my personal belief?
Q. Well, your interpretation of the OTO?
A. My interpretation of the OTO or my interpretation of the Ninth Degree of the OTO?
Q. Well, aren't those the same?
A. No, not necessarily.
The OTO's lower degrees are the degrees for mason work in common between individuals. The secret of the Ninth is part -- imparted to the person confidentially. It's not a normal, masonic situation.
Q. Well, my question then is: As a Ninth Degree would you impart to any person, before you died, the secrets of the Ninth Degree? Is that something you believe has to be done? [page 874]
A. It's one of the duties that you assume when you receive that secret, that you should pass it to someone before you die so the secret would not be lost to human kind.
Q. Where is that stated?
A. I am deeply sorry, Mr. MacKenzie. That is part of a complex and compact initiation which is conversation and explanation and a flowering of understanding. This is told to the initiate by the initiator. This secret gives one a great responsibility.
It's how not be accused -- you should not use to harm anyone in the OTO and you should, if at all possible, communicate it to someone else before you die, but you cannot communicate it to someone who is not prepared for it.
Q. Okay. So you may die without communicating it to anyone?
A. Unfortunately.
Q. If there is someone out there who initiates other people and they don't have a charter, would that be an expellable offense?
A. Yes, but not necessarily. The Outer Head of the Order can understand as he or she likes.
Q. Are you claiming you are the Outer Head of the Order?
A. Yes. [page 875]
Q. And --
A. And I'm claiming that it always has been this way.
Q. It's always been that way since when?
A. Since the order was founded.
Q. I'm sorry. No.
Since when have you claimed to be Outer Head?
A. Since the trial in Maine. I was forced to.
Q. Why?
A. I was under oath.
Q. Well, are you saying you wouldn't lie under oath?
A. I'm a person, sir. Yes, I try not to. Anybody can lie, even without -- but I wouldn't lie under oath.
Q. You would not lie under oath?
A. I purposely --
Q. You consciously might lie under oath?
A. I might lie under oath if there is something that conflicts with my religious obligation, but otherwise no.
Q. Well, would that include some of the testimony today?
A. No.
Q. Well, doesn't it agree with your religious convictions?
A. I was forced in Maine to admit that I am the Outer Head of the Order because I was brought to that position [page 876] by the malanachronisms of your clients and the dishonesty of Mr. Donald Weiser, otherwise I would not have done it.
Q. My question is about lying under oath.
A. Yes.
Q. How do you know --
A. I would not lie under oath for personal profit.
Q. But you would lie for religious beliefs?
A. For the OTO, yes, I would.
Q. How can this Court decide today when you are lying and when you are not lying?
A. That is up to the court to decide.
Q. Prior to the Maine trial, how long had you had you felt you were the Outer Head of the Order?
A. I felt I was the Outer Head of the Order since I received a letter telling me I was the "Follower," but I've been since I had the duty to, by the mentioning in the terminology -- I did not form a conclusion about it for a long time until I received that letter from your clients finally after the trial in Maine in which the word "Follower" is used referring to the successor of the position of the Outer Head.
Q. Didn't Mr. Mittel introduce a letter from Sascha Germer in which she said that Mr. Metzger is the "Follower"? [page 877]
A. Yes. I must say that -- it's not Mr. Mittel's fault that I was not familiar with it.
He sent it to me two months before, but I did not look at any of these documents because I was involved with "Magick Without Tears"' part 2.
Q. Well, if Mrs. Sascha Germer called Metzger a "Follower," and she called you a "Follower," then why are you the Follower, and not Metzger?
MR. MITTEL: Objection on the basis the writing is the best evidence of what Mrs. Germer said.
THE COURT: Overruled.
THE WITNESS: Mrs. Germer, in this particular instance, did not call me "Follower." She said the "Follower." Now, she also wrote in this letter that I never received that Mr. Metzger was the "Follower," according to the charter or letter, whatever was written to him by Mr. Germer in 1961.
BY MR. MacKENZIE:
Q. Didn't you think Sascha Germer was crazy?
A. I wish more people crazy the way Mrs. Germer was crazy.
Q. Didn't you call her that in later years?
A. I beg your pardon?
Q. Had you ever called her that in letters?
A. I beg your pardon? [page 878]
Q. Had you ever called her crazy in your letters?
A. I may have.
Q. Did you think she was crazy?
A. At the time I did not know what her condition and situation was.
Q. Well, did you at any time in her life think she was crazy?
A. Yes.
Q. And what time of her life was that, what year are we talking about?
A. Her life or my life?
Q. Her life, the years, the calendar years.
A. The last two years.
Q. And what period of your years does that cover?
A. You must remember, sir, that I'm not very good at dates.
Q. Was it when you were in New York that you though she was crazy?
A. No, of course not. I'm sorry.
Do you mean when I met her in the United States? No.
Q. I want to know what years you felt she was crazy in.
A. There was contradiction in some of her letters to me that I could not understand because I did not realize [page 879] that she had sent me letters that I had never received.
Also I had asked Samuel Weiser, Inc. to send her the royalties from the "Liber Aleph". And I had a letter written from them to me that she had received the -- received them.
Q. Did you have some right to disperse the royalties from "Liber Aleph"?
A. I paid for the book out of my own pocket, and I gave it to Mr. Germer in a letter because I had asked him that we write a contract for the copyrights.
And he told me that he was acting like Mr. McMurtry and the others.
So I wrote him back. I was giving him -- I was making a free present of the entire edition.
Q. I heard you testify that when you were back in Brazil you would principally find the publisher, get someone to cover the book, print it?
A. The publisher, not the printer.
Q. And --
A. Yes.
Q. And you felt that because of this you owned the book?
A. I paid for the book out of my own pocket, sir.
Q. I see. You're not, I hope, speaking of copyrights to the book? [page 880]
Well, when i say "rights," I did mean copyrights.
A. Of course not. Mr. Germer owned them as outer Head of the Order, or the OTO.
Q. So when you say the royalties were sent to Sascha Germer, what you're really saying is you just redirected the Germer royalties. They were never yours?
A. Excuse me, sir. When I say "rights," I am misrepresenting myself.
I gave all the money, including the publisher's part, not just royalties. All --
Q. The publisher's --
A. -- all recovery from the book went to the Germers except what was --
Q. And a portion of the royalties should be yours?
A. I had asked for it, yes.
Q. And you were not given it?
A. Yes. Pardon me. I asked for it, and it was told to me -- I was already going up under investigation, haggling.
Q. Yes.
A. Your clients have done that a lot with me. You are not supposed to handle it, as a matter of fact.
So when he was told that I was giving him the edition as a present and I would help him financially in [page 881] order to do it.
Q. Now, did you lie under oath in the Main trial?
A. I may have, yes. When I was asked about the rituals of the OTO, I did not want to have any of the ritual revealed at any time.
Q. In other words, you did or did not?
A. I may have. I don't know.
Q. You don't know?
A. No, because it depends on the interpretation of some --
Q. Well, did you answer the questions truthfully?
A. Yes, but ambiguously.
Q. Isn't it a fact that you have written a letter where you've admitted that you lied under oath?
A. To whom?
Q. To your attorney.
A. About what?
Q. About lying under oath at the Maine trial.
MR. MITTEL: Objection. If he's asking about a communication with me --
MR. MacKENZIE: Your Honor, that letter was sent by Mr. Motta to two other individuals. He waived the attorney-client privilege in doing so.
THE WITNESS: No, sir.
MR. MacKENZIE: You don't -- [page 882]
THE WITNESS: No.
BY MR. MacKENZIE:
Q. Well, let me show you the letter.
A. I did it that way because I sent it to the OTO who were under contract with me to keep secret anything that related to the Order without permission and to do that even if they eventually left the Order.
But I would be glad to answer your question if my attorney permits.
MR. MITTEL: I am not sure -- Mr. Motta, stop.
I'm going to object to any further testimony about a letter that was sent to me even if copies were sent to the Society Ordo Templi Orientis.
MR. MacKENZIE: It went beyond that. It was sent to Mr. Gardis. I've heard that he was never a member of the SOTO.
THE COURT: If there was a publication of communication broader than that just to Mr. Mittel, then that has to be certainly considered an attorney-client privilege. If the letter went to the Board of the SOTO they might still be considered Mr. Mittel's client. But I don't have any document in the record to rule on that.
MR. MITTEL: Under the Supreme Court privilege case, "Upjohn" -- [page 883]
THE COURT: Well, yes, I understand, a copy of the letter, but I have, as where the copy went --
MR. MITTEL: I don't have the letter, so we have to wait until I see it.
MR. MacKENZIE: Well, just a moment and I will give it to you.
THE COURT: I believe your colleague wants to give you a copy of something.
MR. MacKENZIE: I would at this time introduce Plaintiffs' Exhibit 217; show you a copy of that Mr. Motta.
THE COURT: 217.
BY MR. MacKENZIE:
Q. Mr. Motta, drawing your attention to the first page, the third paragraph at the bottom --
THE COURT: Well, let's go to the voir dire on this.
First, who is Messrs. Gardis -- and I do, of course, know Mr. Starr.
BY MR. MacKENZIE:
Q. Mr. Motta, --
THE COURT: Who is Mr. Gardis?
THE WITNESS: He is a pupil of mine in the A.'.A.'., Your Honor. [page 884]
THE COURT: Well, do you want to voire dire?
MR. MITTEL: May I consult privately with him for a moment?
THE COURT: Yes, you may.
MR. MITTEL: May he step down?
THE COURT: Yes.
Mr. Motta, you may step down to confer with your counsel.
(Discussion off the record.)
MR. MITTEL: May I make a representation to the Court?
THE COURT: Yes, certainly.
MR. MITTEL: You know who Mr. Starr is.
Mr. Gardis is an attorney. Mr. Motta will testify -- I have asked -- that he was representing him, giving him advice.
And I would also say on the record that he has cooperated with me in the presentation of this case and I relied on him a great deal.
THE COURT: All right. That's the representation.
If you want the document in, you're going to have to voir dire on the document about whom Mr. Gardis is and what Mr. Starr's status was at the time he [page 885] received a copy of this letter.
BY MR. MacKENZIE:
Q. Mr. Motta, a copy of this letter was sent to Mr. Gardis. Who is Mr. Gardis?
A. He's a pupil of mine. He's an attorney and he's advised me legally in many ways.
Q. I'm sorry? He has advised you legally on many occasions?
A. Yes.
Q. Is he your principal financial supporter?
MR. MITTEL: Objection; relevance.
THE COURT: No, it's relevant.
THE WITNESS: No.
BY MR. MacKENZIE:
Q. See, --
A. But all my pupils support me.
Q. Well, does he give you -- how much money has he given you?
A. I refuse to answer that under the First Amendment of the American Constitution.
MR. MITTEL: Le me see if I can point the objection a little more.
He's a pupil in a religious organization. Under "NAACP versus Alabama", and I think the "NAACP versus Button" (phonetic), he's not required to disclose any [page 886] information about the members of his organization.
THE COURT: Well, I want to establish whether Mr. Gardis received this letter in his capacity as a lawyer or in his capacity as a friend, supporter, student, fellow member, what-have-you.
MR. MITTEL: I don't think that is any objection to a question such as that. But when he starts to inquire about the details of Mr. Gardis' life, or anything like that, or details of the relationship between them, he encroaches on Mr. Motta's First Amendment rights.
MR. MacKENZIE: Well, isn't it --
MR. MITTEL: He can inquire:
Is Mr. Gardis your lawyer; has he done legal work for you? Was he involved in the case in Maine?
All those kinds of questions are perfectly acceptable.
BY MR. MacKENZIE:
Q. First of all, is Gardis this person's right name?
A. I refuse the answer the question under the First Amendment of the American Constitution.
Q. Well, you don't have to give me the right name.
Is it a pseudoname?
A. I refuse to answer the question under the First Amendment of the American Constitution. [page 887]
Q. Is a student of yours?
A. Yes, he is.
Q. In the A.'.A.'.?
A. Yes, he is.
Q. Is he in the SOTO?
A. No, he is not.
Q. Was he your attorney of record in this case in Maine?
A. No, he was not. But he helped me during the preparation of the case.
Q. What did he do?
A. He gave me advice many times. And I consulted him many times.
Q. Why did you consult him if you had another attorney named Mr. Mittel?
A. I know that goes against the grain, Mr. MacKenzie, but sometimes two attorney is better than one.
Q. Where does Mr. Gardis live?
A. I refuse to answer that under the grounds of the First Amendment of the American Constitution.
Q. Does he live in the State of Maine where Mr. Mittel has his offices?
A. I refuse to answer that under the grounds of the [page 888] First Amendment of the American Constitution.
MR. MacKENZIE: Your Honor, I don't know how much further to proceed on this.
THE COURT: I don't want to make a First Amendment problem out of this, because all we're talking about is a foundation for a letter.
Mr. Motta, what legal services has Mr. Gardis performed for you?
THE WITNESS: He has helped me in the writing of many legal documents. He has given me legal advise about how to prepare the income tax, my personal income tax, so that it would not have any conflict with the status of the OTO as a nonprofit organization.
He has made his study of how to escalate the contributions of members so that those people who earn a lot of money do not have to contribute five percent of their income at all, because that would overwhelm the other members.
He has given me advice on many legal points relating to the case of the OTO.
BY MR. MacKENZIE:
Q. When did he first become your attorney?
A. At the time that I decided to start a case against Donald Weiser in Maine.
Q. Have you ever paid him any fees? [page 889]
A. At the beginning, yes.
Q. And when was the last time you paid him fees?
A. I do not remember.
Q. Do you know --
THE COURT: All right. Now, all right.
What was Mr. Starr's position or relationship with respect to you in December of 1984?
THE WITNESS: A position of complete confidentiality, as my director in the SOTO, obligated towards me by the terms of his own letter of contract paper.
THE COURT: Any further voir dire?
MR. MITTEL: May I ask a question or two, Your Honor?
THE COURT: Yes, certainly.
VOIR DIRE EXAMINATION
BY MR. MITTEL:
Q. Has Mr. Gardis assisted me in the preparation of this trial, Mr. Motta?
A. Yes, he has.
Q. Has he assisted me in the preparation of the brief on appeal in the First Circuit Court of Appeals in Boston?
A. Yes, he has.
MR. MITTEL: That's all, Your Honor. [page 890]
THE COURT: Any further voir dire with respect to Mr. Starr?
MR. MacKENZIE: Not with respect to Mr. STarr, Your Honor.
THE COURT: Mr recollection of his testimony was that he was the director of the SOTO.
MR. MacKENZIE: No, Your honor. He resigned in January after this letter.
THE COURT: January when?
MR. MacKENZIE: '85.
THE COURT: So he was a director?
MR. MacKENZIE: Yes, he was.
THE COURT: Exhibit 217 will not be admitted into evidence. It is privileged under the attorney-client privilege.
CROSS-EXAMINATION (Resumed)
BY MR. MacKENZIE:
Q. Now, did you say that you had or had not lied under oath in Maine?
A. I remember the occasion very vividly.
Would you like me to tell you what happened?
Q. No. I would just like a yes-or-no answer.
A. The please repeat the question.
Q. Did you or did you not lie under oath in Maine?
A. I tried to. [page 891]
Q. You -- I'm sorry?
A. I tried to.
Q. Tried to --
A. Right.
Q. You tried to lie?
A. Yes.
Q. Okay. Well, would you undertake any destructive physical action in furtherance of the OTO?
A. Will you repeat that question a little more slowly, please?
Q. Would you do harm to someone if you felt the OTO was threatened by that person?
A. In self-defense, if necessary, of the OTO, depending on the circumstances, yes.
Q. I don't mean you personally. I mean if the OTO were being attacked.
A. I know.
Q. Thank you.
A. It has been my experience that turning the other cheek has never defended any person's property or freedoms in this world.
And I think that's written in the Declaration of Independence of the American people.
Q. So, it's better to attack the enemies, in other words? [page 892]
A. I believe, sir, that that would depend very much on the circumstances, wouldn't it?
A. Yes. But in some cases that would be true; is that what you're saying?
A. In some cases that's the plan of attack, yes.
Q. And what about --
A. That has been known to happen in wars.
Q. Would that include physical attack?
A. Of course.
Q. Did you ever pay any dues for the Ninth Degree membership?
A. Define "dues"?
Q. Monthly or yearly payments of money.
A. I sent Mr. Germer money as long as he asked me to send it, and sometimes when he didn't ask.
As for the payment of initiation of the Ninth Degree, he never required me to pay for it.
Q. Is that the reason there aren't any notations in the OTO dues book that you ever made any payments?
A. What OTO dues books?
Q. Records of payments.
A. What OTO -- which OTO are you talking about? Are you talking about Mr. Germer or are your talking about your clients?
Q. I am talking about the records that are available [page 893]now stretching back to the Agape Lodge.
A. I paid for lots of things.
MR. MITTEL: Objection; relevance.
If you're talking about the Agape Lodge, Mr. Motta lived in Louisiana and later in Brazil and could not have belonged to the Agape Lodge.
MR. MacKENZIE: No, --
THE WITNESS: I have never joined the Agape Lodge. I knew the members.
BY MR. MacKENZIE:
Q. Did you require -- does SOTO require dues of its -- well, when it had members, did it require dues?
A. Yes, it did. It's part of the other payment. It's clearly written.
Q. And when are you going to start admitting members into the SOTO?
A. Maybe never. It depends on the results of the case in Maine and also this case here.
Q. Why is it that you don't want any members of the SOTO; is it because of attorney fees?
A. I do not want my members to be penalized about what happens as a result of the legal case. i do not think it's fair.
Q. Okay. Is the reason you think that they would be penalized because your corporate veil can be pierced? {page 894]
MR. MITTEL: Objection; relevance. Competency of the witness to answer the question.
THE COURT: Sustained.
BY MR. MacKENZIE:
Q. What did you do after you heard about the 1967 Sascha Germer theft; did you do anything?
A. No.
Q. Did you go through the Minerval?
A. No.
Q. I thought the Minerval was a prerequisite initiation for the OTO?
A. No. The Ninth Degree is a mystical degree. Anybody can be initiated into it. And the secret of the degree can be imparted to any person who is prepared to understand it.
Q. So there's no telling who all is in the Ninth Degree, is there?
A. That shouldn't be. The members shouldn't even say they are members of the Ninth Degree. I wouldn't be saying it here if I weren't forced by your clients.
Q. Well, then, you've acknowledged that Grady Mcmurtry is a Ninth Degree for sometime. How did you know that?
A. Mr. Germer told me.
Q. Well, why did he tell you if you're not supposed to tell? [page 895]
A. Come now, sir.
Members of the Ninth Degree can know each other and can recognize each other, but they are not supposed to declare publicly, to proclaim that they are members of the Ninth.
Q. Then can tell each other but not other OTO members?
A. They should not tell lower grade OTO members, no.
Q. Well, what do those lower grade OTO members think these people are if they never say what degree they were.
A. If they work in a lodge, they say they are members of a degree of which those lower members are not a member, but only they work in a lodge. They may join the lodge; they may joint the Minerval and rise through the grades of the lodge.
And by their presence in the lodge theoretically they inspire, dynamize the members of the lodge. They can also be lodge masters, but for that event, they must have a charter.
Q. Didn't you say in your Manifesto, the unpublished Manifesto, which was introduced as Plaintiffs' Exhibit 77 that Grady McMurtry is the U.S. head and --
A. It was not published and -- did I say that? I cannot recall what I said.
Q. Let me --
A. I think I may have said head of a lodge, not head. [page 896]
Q. Let me see if I can find it.
I show you Plaintiffs' Exhibit 77 and ask for you to read, please, the portion that's underlined on page 1.
A. Head of a lodge and head are two different things.
Q. If you would just read that portion.
A. Certainly.
"Mr. Grady McMurtry, Ninth
Degree OTO, by patent of
the Ninth, Tenth, Eleventh
OTO, duly ratified by Saturnus
Tenth, Outer Head of the Order,
that after deponent's {SIC] demise,
is head of the lodge of the
United States of America and
we duly recognize him as such.
In the matter of Aleister
Crowley's" --
Q. Doesn't that mean he's the head of -- head of the U.S.?
A. Of course not. If I meant that, I would have said so. And besides, he did not have a duly ratified charter. And Mr. Wasserman misrepresented the facts to me.
Q. So you base your writing in this paragraph on what [page 897] Mr. Wasserman told you?
A. Yes. I tend to trust my pupils, which is sometimes disappointing.
Q. Well, I thought Mr. Wasserman was an A.'.A.'. pupil rather than an OTO pupil of yours?
A. More important to me, then.
Q. And he's the one who told you that Mr. McMurtry had been ratified by Saturnus Tenth, Karl Germer?
A. No, sir. He told me that Mr. McMurtry, Mrs. Parsons -- excuse me -- Mrs. Smith and Miss Seckler were doing OTO work in the United states of America.
I immediately assumed that they had charters. I'm stupid that way.
Q. Well, how did you know much of anything at all being in Brazil for 20 years?
A. Will you repeat that again a little more slowly, sir?
Q. Weren't you in Brazil from about 19 -- about 1961, I think, to 1981?
A. Yes.
Q. How did you know anything at all that was going on?
A. I couldn't obviously.
Q. I'd like to show you Plaintiffs' Exhibit No. 141 and ask you if you recognize that letter?
A. Yes, I do. [page 898]
Q. Would you read that portion that I've underlined at the beginning of the bottom paragraph, continuing on to the top of the next page?
A. "Helen has never had an
OTO patent and Smith was
not involved in nominating
her as head of anything.
Only Germer had the
authority. I stated other-
wise in my Manifesto for my
own purposes and will not
attack Helen if she turns
herself in."
Q. That's fine. Thank you.
Now, you say you stated otherwise in your Manifesto for your own purposes?
A. Yes.
Q. Doesn't this mean that you lied?
A. Oh, sir. I was not under oath.
Q. Oh, if you're not under oath you can lie?
A. Everybody does. Some people even under oath more than once.
Q. Well, how many other statements of yours are true or false.
We've had a lot of letters in here today. [page 899] How can we believe any of the ones that you've written?
A. You should believe the facts.
Q. Well, wouldn't your claim to receiving the Ninth Degree from Karl Germer be another such statement that you could, quote, "state for my own purposes"?
A. You are welcome to interpret in any way you want.
Q. I'd like to show you Plaintiffs' Exhibit 131 and ask you if you recognize that letter?
A. Yes, I do.
Q. On the bottom of page 2 you write, bottom paragraph -- second to bottom --
"You have a power of
attorney from me. You
have ample instructions
to fulfill or what is {SIC}
left of it. Fulfill or
not. Do not write me
directly."
Are you revoking his power of attorney in this letter?
A. I was telling him to do his work.
Q. You were affirming his power of attorney with that phrase?
A. I was telling him to do his will. He had a power of attorney from me. [page 900]
How he interpreted his duty to himself or to me was his affair, not mine.
Q. So you didn't care what he did?
A. Oh, I cared what he did, very much so.
Q. But you weren't going to hold him responsible for the consequences of his choice?
A. That would, again, depend on the consequences. What I was trying to give him was a chance to be an honorable man.
Q. What you're giving him is a choice to do it or not; isn't that correct?
A. Yes. That's the choice we all have in mind at all times.
Q. Fine. Now, in the paragraph above that you state:
"As someone who has been
thought crazy by you police
and mine and who has thought
himself crazy and who has
been crazy,"
With "has" being underlined,
"I can only remark that I
knew Mrs. Germer personally."
Have you been crazy?
A. Yes. But --
Q. Are you still crazy? [page 901]
A. Some people say so.
Q. Well, have you ever advocated magical murder?
MR. MITTEL: Objection; relevance.
THE COURT: Sustained.
BY MR. MacKENZIE:
Q. Let me show you Plaintiffs' Exhibit 78 and ask if you would identify that for me, please?
THE WITNESS: May I ask my counsel a question, please?
MR. MacKENZIE: Yes, please.
MR. MITTEL: Your Honor, may I have a moment?
I think my witness who was subpoenaed is here.
THE COURT: Yes.
Well, why don't we take a recess at this time. Approximately a fifteen-minute recess, lades and gentlemen.
(Brief recess taken.)
BY MR. MacKENZIE:
Q. Mr. Motta, back on the record again.
Look at Plaintiffs' Exhibit 78. Do you recognize that note?
A. It seems to be a handwritten note by Mrs. Germer to me which I had never seen until it was produced by the [page 902] plaintiffs.
Yes.
Q. And does she in this call you a "Follower" of Aleister Crowley?
A. Yes.
Q. Does she call you "the Follower"?
A. Not this time.
Q. Do you notice that she capitalizes a lot of nouns in that note?
A. Yes.
Q. Do you know why she does that?
A. Because she was originally from Germany, and in Germany it's common to do it with nouns, especially abstract nouns.
Q. Speaking of "the Follower," I think it's "Liber Al" {SIC s.b. "Liber AL" -def} -- correct if I'm wrong -- in which you wrote that phrase in which the word "follow," "to follow" appears?
A. They come to want to follow me, yes. {SIC s.b. "There comes one to follow me, yes" -def}
Q. Is that a book of the OTO?
A. No, that's published by me.
Q. No, I'm sorry.
I mean does it concern OTO rituals, or is it for the A.'.A.'. or the College of Thelema?
A. Not College of Thelema, please.
Q. Thelemic religion, excuse me. Order of that name? [page 903]
A. No, I think it's for everybody.
Q. It's for everybody?
A. Yes. Anybody who is interested.
Q. Now, I want to be clear on one point. Did you say the Minerval is or is not necessary to becoming initiated into the OTO?
A. The Minerval is necessary to become initiated in the First Degree of the OTO and climb up all the degrees up to the Ninth. But it's not necessary to be initiated in the Ninth.
Q. And --
A. But Mr. McMurtry was a Ninth, and if I'm not mistaken, he still had not been initiated in some of the degrees of the OTO.
Q. Yes. But as far as Minerval goes, you claim you were not initiated in the Minerval, and you went straight into the Ninth Degree; is that correct?
A. I didn't claim it; I stated it.
Q. Yes. All right.
Well, something else I wanted to ask you: You say that Ninth Degrees should pass the secret rituals on to other people.
A. It's not the secret rituals. It's the secret document, that one document, "Emblems and Modes of Use," or at least the knowledge in parts of it. [page 904]
Q. Well, the person they pass it to would not be an OTO member at the time they receive it, would they?
A. Would you repeat that a little more slowly, please?
Q. Yes. If the Ninth Degree is passing these things on to someone, is that person who gets them an OTO member? Do you pass them only to OTO members or to the public?
A. Not to the public, in general. I know it's hard to understand and it's hard for me to explain without going into it more that I should.
If someone has the necessary sensitiveness, intuition, spiritual perception and I would add purity to understand what this meant, that person should have it.
Q. Now, that's not always the person who has already been a member in the OTO; is that correct?
A. Does not even have to be who is a member. The person who receives it is not hereby necessarily obligated to be a member of the OTO.
Let me try to explain it.
Q. No, that's fine.
So a non-OTO member can receive such a thing?
A. Many have received through the centuries.
Q. Now, after that, that person is then Ninth Degree who has received that; is that correct? [page 905]
A. Only if the person is willing to join the OTO.
Q. Okay.
A. But that person has that particular secret.
Q. Okay. Well, then, that person goes on to an OTO meeting, and you stated earlier that the Ninth Degrees aren't supposed to identify themselves, don't you have the problem with a lot of strangers walking around in a meeting that no one knows?
A. They're not supposed to identify themselves to anyone below the Ninth.
Q. Well, how do they know who the other Ninth Degrees ar if they are in the same room?
A. Why should they go unless they need to work together?
I mean, in theory we are all humans together at all times.
Q. Do you think that Aleister Crowley's writings and rituals are the control, the fundamental core of the OTO?
A. Now, yes.
Before him, no.
Q. Yes, since his time. Okay.
Have you ever wanted to change Aleister Crowley's rituals and writings?
A. His writings, no. [page 906]
The rituals of the OTO, I had to.
Q. You had to change them?
A. Yes. That's what I tried to lie about in Maine and couldn't.
Q. I see. And the reason you had to change them --
A. Because they were published.
Now, Grant wrote his own rituals, the new rituals, before, much before the rituals were published.
That was, to say the least, extremely silly. One does not change those things unless it's absolutely necessary.
Q. And when was the King book published?
A. I do not recollect the exact date. I believe it was around 1974, but I'm not sure.
I'm very bad at recalling dates. Time passes in a strange way for me.
Q. I show you Plaintiffs' Exhibit 57, which is a copy of the Constitution of the Ordo Templi Orientis, and ask if you would identify that, please.
A. Yes, sir.
Q. Excuse me. See -- did I say Order Templi -- I mean the SOTO is what we're looking at.
Turning to Article 33 on the very last page, it reads:
"Hereby is designated as [page 907]
First Supervisor General of
the SOTO of Brazil citizen
Marcelo Ramos Motta with
proper limited warrant."
Now, is this the warrant that got lost in the mail?
A. It must have been. I had never seen it until you showed it to me.
Q. This is your Constitution, is it not?
A. Yes.
Q. Oh, you never read that before today?
A. I'm sorry. I was talking about the charter, the letter charter that was sent that I never received.
Q. Oh, the April 20th letter?
A. Yes.
Q. I see. Okay.
A. I'm sorry.
Q. That;s the one you held the charter in?
A. Yes.
Q. All right.
A. To make it easier, you don't have to use the word if you don't want to.
Q. Okay. I'll call it a conditional charter.
A. Okay. I think that's fine. I consider that it was that, too. [page 908]
It would have been accepted if it had been received, though.
Q. I'd like to jump forward to the Calaveras County Court period.
Do you think that you were given notice ahead of time about the occurrence of that?
MR. MITTEL: Objection; relevance.
Your Honor already ruled on the binding effect of the Calaveras County decision, or I should say a lack of binding effect.
MR. MacKENZIE: Well, I think what the Judge ruled is that we cannot use it as res estoppel --
THE COURT: Yes, that's right.
MR. MITTEL: Well, you denial of their motion then did not -- let me see if I understand -- all you said was that they had not made out a summary judgment case and not that they were just wrong.
THE COURT: Well, I think the Calaveras County is clearly in evidence, but it was not collateral estoppel establishing a case or prejudicing it.
So I'll hear testimony as long as you don't get too far down the track.
MR. MacKENZIE: Now, Your Honor, this is a --
THE COURT: As long as you don't base your examination on a foregone conclusion. [page 909]
MR. MacKENZIE: No. No, Your Honor.
BY MR. MacKENZIE:
Q. My question is: Do you believe that you received notice before the hearing about that hearing?
A. I -- at the time I received this, I was just beginning to become acquainted at the time -- I'm sorry -- at the time I received Mr. McMurtry's and Mr. Wasserman's letters in one envelope, I was beginning to get acquainted with the law. Do you mean --
Q. No, no. That's not my question.
My question is: Did you receive notice of that hearing --
A. I will try to explain.
Q. -- prior to the hearing?
A. The letters were not clear enough. The letters gave the impression that the whole thing had been settled.
Q. You don't believe that you got proper -- or you didn't get notice --
A. No, I don't.
Q. -- before the hearing?
A. Notice, formal notice? Legal notice? No.
Q. No, I don't mean legal. I mean a letter of some sort that said this thing is happening in Calaveras County. [page 910]
A. No, no.
Q. Then why did you send Mr. Wasserman out there?
MR. MITTEL: Objection; relevance, Your Honor.
If he's trying to establish that Mr. Motta had a notice that the decision is binding on him --
THE COURT: Well, I think that's --
MR. MITTEL: -- he can't do that. There's no notice served.
On the other hand --
MR. MacKENZIE: A letter is information.
THE COURT: Well, what is the purpose of this line of inquiry?
MR. MacKENZIE: Well, Your Honor, because we have a letter that's already been introduced in which Mr. Motta was told about this here, and he's now saying he never got the notice.
THE COURT: Well, where is this going to now?
MR. MacKENZIE: Further impeachment.
THE COURT: I don't think so.
MR. MacKENZIE: Okay.
BY MR. MacKENZIE:
Q. I'd like to show you the "Commentaries of AL" and ask if you recognize that book? [page 911]
A. Yes, I do.
Q. Okay. Is that --
A. Excuse me.
Q. Is that you book?
A. Yes.
Q. And you're familiar with its contents?
A. By heart, no.
Q. Well, you read it --
A. Well, I --
Q. -- before it got published?
You wrote it?
A. I wrote parts of it, yes.
Q. Let me read to you --
A. But I don't recall all I wrote verbatim.
Q. Well, let me ask you this: Did you proofread it before it got printed?
A. I don't think so. I am not sure. You'd have to ask Mr. Wasserman.
It was a long time ago, and I don't remember. They had the proofreader, fortunately for them. I wish I had one.
Q. There is a preface to the book written by Mr. Wasserman. Did you see that before it got printed?
A. I think so. I must have. He probably would have sent it to me, but I am not sure. I can't answer that. [page 912]
Q. I'd like to read to you a portion from it. It says:
"Mr. Germer thought most highly
of Mr. Motta and it was his
dying wish that he be informed
that he was the 'Follower'."
MR. MITTEL: Objection. If Mr. MacKenzie is reading Mr. Wasserman's statement in to the record as evidence, it's hearsay. If he wants to ask Mr. Wasserman if he wrote that, okay.
MR. MacKENZIE: I just asked your client if he read it before hand and he said he believed he did.
THE WITNESS: I said I am not sure.
MR. MITTEL: Again, I don't understand what is the relevancy.
THE COURT: Well, I have to wait for a question before I can rule.
MR. MITTEL: Well, I thought he was reading that as evidence into the record.
MR. MacKENZIE: Well, I think the book has been offered in evidence, hasn't it?
THE COURT: Yes, it has.
MR. MacKENZIE: Aren't the "Commentaries of AL" --
MR. MITTEL: This book is not in the [page 913] record. This is merely a book published by --
MR. MacKENZIE: Well, then, let me just ask you a question about it. I'll read it, but the book is not in evidence.
"Mr. Germer thought most highly
of Mr. Motta and it was his
dying wish that he be informed
that he was the 'Follower'
promised in A.L. 276 {SIC s.b. AL ii, 76 --def}, a
belief which Mr. Motta has
since stated was incorrect."
THE WITNESS: That was my interpretation of what Mr. Germer had said at the time, and I was in doubt about it, yes.
BY MR. MacKENZIE:
Q. I see. I'd like to show you several documents here, Mr. Motta.
MR. MacKENZIE: Your Honor, I have two sets.
THE COURT: Have these been marked?
MR. MacKENZIE: Yes, they have.
THE COURT: I am sorry?
MR. MacKENZIE: These are now, but the others are identified.
THE COURT: All right.
BY MR. MacKENZIE: [page 914]
Q. I'd like to show you a letter dated September 11th, 1957, Plaintiffs' Exhibit 203, and ask you if you wrote that letter to Karl Germer?
A. That was -- should have been the Court, but I did not choose to keep copies of my letters to Mr. Germer at the beginning.
And I haven't seen this letter for years.
Q. Well, if you could just identify that.
Is that you signature or mark on the third page?
A. Yes, uh-huh. That was what I used to sometimes sign my letters to Mr. Germer and to other people sometimes, too. It looks like my typewriter, the typewriter that I had at the time, too.
Yes.
Q. Would you read the portion that I have marked, please, on the first page?
A. "Frankly, I don't feel very
much like tampering with the
OTO's rituals. I'd rather
start my own Order in my own
way with my special brand of
attitude towards the Order
if the time ever comes to do
such a thing." [page 915]
Q. That's fine. Thank you.
I'd like to show you Plaintiffs' Exhibit 244 and ask if you would identify this extract?
A. It seems to be reproduction of the title pages of "Liber Aleph", which I printed in Brazil.
Q. Now, this is the --
A. Yes.
Q. -- book on which you worked with Karl Germer?
A. Yes.
Q. Does your name appear anywhere on this book?
A. No, it does not. He asked me to put my name in, but I didn't want to. I knew how Crowley lived and I knew how he lived. I was trying to think how I was trying to go through the last 33 years, but I didn't avoid ...
Q. It says here it's published by Thelema Publishing Company?
A. Yes.
Q. Who do you believe owned the name or rights to that name, Thelema Publishing Company, Karl Germer or the OTO?
A. Karl Germer.
Q. In the same way that he owned the copyrights to the OTO books that he had copyrighted?
A. He did not own the copyrights to the OTO books. [page 916]
Q. Those were the OTO's?
A. Yes.
Q. But Thelema Publishing Company was Karl Germer's?
A. So far as I know, yes. I did not know that anybody used this before he did.
Q. Well, why would that not have been the OTO's?
A. This does, this book, as you can see, it says the "Equinox" Volume 3, No. 6. So it's an official A.'.A.'. publication and has in it matters of the A.'.A.'. as you can see on the page following the title page.
Mr. Germer did not used to publish Crowley's books, because he did not have money to do so except during the period of speech of the A.'.A.'.
Q. So you don't believe the OTO had any rights in that name?
A. No.
Q. Okay. Did Karl Germer leave you rights in that name, Thelema Publishing, in his will?
MR. MITTEL: Objection; relevance. The will has never been offered or approved by the Probate Court.
What he said in the will makes no difference.
BY MR. MacKENZIE:
Q. Well, let me ask you this: Did Mr. Germer ever give you the rights in writing to that name?
A. I believe by the very fact that he allowed me to [page 917] print the book and put that there, he was giving me permission to use it. I would not have used it without his permission. This type of page is the title page that he wanted.
Q. Did he give you any explicit permission?
A. I do know what you mean by "explicit permission." Do you think that I would print this book if he hadn't allowed me to?
Q. I've seen the libel you have printed, sir, and I think you would do so, if you ask me.
MR. MITTEL: Objection to the form of the question.
THE COURT: Overruled.
THE WITNESS: Would you repeat what you said? You went too quickly about it.
THE COURT: No. Just rephrase the question if you want an answer.
BY MR. MacKENZIE:
Q. I show you Exhibit 206.
MR. MacKENZIE: Your Honor, I'm missing Exhibit 206.
THE COURT: It's not in this stack here.
MR. MacKENZIE: I'm sorry. Could I ask some questions --
THE COURT: Yes. [page 918]
MR. MacKENZIE: -- and then get a copy made?
THE COURT: Yes.
BY MR. MacKENZIE:
Q. Would you identify this document, please?
A. That's my signature, but it seems to be a letter that I wrote, but I do not know to whom.
Q. Okay. And it's on SOTO stationery?
A. Yes.
Q. Could you just read the underlined portion, please?
MR. MITTEL: May I see that before you do that?
BY MR. MacKENZIE:
Q. Please.
A. Do you mind if I read the letter first?
Q. Well, if you'd like to read the entire letter to yourself. I'd only like the underlined part read.
A. You mean underlined in yellow?
Q. Yes.
A. Oh, Okay.
"Make up calls for Santa Claus {SIC}
If you have a car, sell it or
get a loan on it. If you have
a girl, borrow money from her
or send her out to a minister {SIC m.b. "to hustle" --pla}"
(phonetic) [page 919]
Q. is that one of the ways that the SOTO raises money?
A. Oh come on now, Mr. MacKenzie. This is a colloquial letter to -- theoretically to a friend. What do you expect?
Do you think I go around being thoughtless in my correspondence to my pupils? I'm not Mr. McMurtry.
Q. I'd like to show you Exhibit No. 201 and ask you to read the portion that's been marked on page 2.
A. You mean the part that has the two --
Q. The two lines.
A. "I have conceived," is that it?
Q. Yes.
A. "I have conceived the greatest
love {SIC s.b. "loathing" --pla} for OTO work. As for
Smith, if wishes had any power,
I hope to die soon {SIC s.b. "I hope he dies soon" -pla}.
He is
wrong, dead wrong. He may be a
king, but he is sick. Let him
die. Maybe it is the complex
of little height that powers
him."
Do you consider that a magical wish?
Q. Well, I don't know. What --
A. Let me state for the record, sir, that the greater the Ninth, the power of the Ninth allows us to kill [page 920] people magically if we want to.
And I have never done that. I have never even wished to do that. This is an expression of temper, nothing else.
If I wanted to do it I wouldn't have to write about it; I would do it.
Q. I show you Plaintiffs' Exhibit 208, and I ask you to identify it and read the marked portion, please?
A. Where it's marked?
Q. Where it's marked, yes.
A. "The OTO is no concern of mine,
though I am sure that sooner or
later" --
Do you wish me to continue, or just this part?
Q. No, that's the principal purpose.
I show you Plaintiffs' Exhibit 201 and ask you if this is a letter you received from Gerald Yorke.
Look at this one, please.
A. This one (indicating)?
Q. And would you read the portion that's underlined, please?
A. Yes.
"I have always understood
that Jean Brayton was
responsible for stealing [page 921]
the Germer-Regardie
archives as well as the
material from Mildred
Burlingame."
Q. Go on.
A. "I have always been doubtful
that Stella Seckler was
involved and Sascha only
recognized her through her
hands."
You want me to continue?
Q. No, that's fine.
Did you believe Mr. Yorke when he told you that?
A. I had stopped believing Mr. Yorke about anything else until he quoted some document.
Mr. Yorke was an intelligence agent of the British Government for many years. And he still had a connection in intelligence until he died.
Q. Do you believe Mr. McMurtry is an agent of the U.S. Government?
MR. MITTEL: Objection; relevance.
THE WITNESS: I had that suspicion at the time.
BY MR. MacKENZIE: [page 922]
Q. I'd like to show you Plaintiffs' 2111, please. Is that a letter you wrote to Mr. Starr?
A. Yes. It's a private communication.
Q. Are discussing the unauthorized distribution of your private correspondence concerning the Germer letter that's at issue in this case?
A. Possibly. It's a long letter and I haven't read it in a long time.
Q. Well, let me read a portion of it. In number 2 it says:
"By the way, for your infor-
mation I had been hoping he
would try to do" --
Looks like --
A. Excuse me. Which page, sir?
Q. I'm sorry. This is page 1, paragraph number 2.
A. All right. Go ahead.
Q. "I had been hoping he
would try it so I could
ascertain before a court
of law that Grady McMurtry
has been distributing my
private correspondence."
And then why don't --
A. Well, only whether it's considered juicy, to be [page 923] sure.
Q. "Still for your information,
it was not Grady's idea to
distribute my correspondence
in this way. He is not
bright enough. It was
Phyllis'. She has since
written me professing herself
shocked by Grady';s initiative
and offering to send me the
correspondence back.
"I do not feel it necessary
to answer this lie {SIC} bitch."
A. She said she would send back not only my correspondence, but the entire Thelemic library and those, as well.
I did not feel it to be necessary to answer this lie {SIC} bitch, yes.
Q. And in the next paragraph you say:
"Still more for you infor-
mation, I am not afraid or
ashamed of anything in my
correspondence with Mr.
Germer and would like
eventually to see it [page 924]
published."
Don't you state in this letter that the reason you don't want those letters distributed is so that you can publish it yourself; is that correct?
A. Yes. They are my correspondence and it's not for anybody to publish it or circulate it at any time except me.
Q. And reading at the top of the next page, you say:
So I do have a great desire
to lay my hands on the
correspondence with Mr.
Germer, but not out of a
fear of having it being
published."
And I won't go on in that letter, except to remark --
A. Are you saying, sir, that the fact that I do not mind having my correspondence being public gives them the right to circulate them without my knowledge and consent?
Q. I would just remark that on this page you talk about the word "penis" at least eight times.
A. Wasn't that the point of the letters that were distributed?
Q. Well, since you raise that, I think that you take a [page 925] close reading, you discussion is not about those letters.
I will leave it at that.
A. As you wish.
Q. Show you Plaintiffs' Exhibit 213 and ask if this is the registration by the State of California of you -- of the SOTO's name and insignia?
A. Yes, it is.
Q. Can you tell me how that insignia differs from the one that the plaintiffs use.
A. By the addition of the word "Society," and by the fact that it is in color.
Q. And on the first page it states the date first used in California is dated as April 15th, 1980.
A. Yes.
Q. Okay. When did you say that you decided you wanted to reformulate the oTO rituals? When did you first make up your mind to do that?
A. When the Crowley rituals were published.
Q. Okay. I show you Plaintiffs' Exhibit 215.
Is that a membership application to the Society?
A. Yes, it is.
Q. And why do you inquire about the polic {SIC s.b. "police" -pla} record?
A. Because I have had pupils with criminal records, [page 926] and it's necessary to know about it.
Q. When id you start using this form?
A. It may have been some time between 1980 and 1983. I do not recollect the exact date.
Q. Are you familiar with the name Jeremy Ellis?
A. Yes.
Q. Was he a director of your Society?
A. Yes.
Q. And how long was he a director?
A. I do not recollect exact dates, but at least four years, I think.
Q. When did he stop being a director?
A. I asker him to resign. If he had not resigned, I would have expelled him.
I do not recollect the exact date.
Q. Was it -- can you guess which year it was?
A. I can tell you that it was six months before he had made his attempt on the records at Routledge & Kegan Paul. That much I know, because I went back in the records to look at the news.
Q. You mean the bombing of the publisher's house in London?
A. The attempted bombing.
Q. I show you Plaintiffs' No. 2190 and ask if this is a letter that you sent to Mr. Ellis? [page 927]
A. I -- I gave Mr. Starr permission to copy my entire correspondence with --
Q. Just answer the questions, Mr. Motta, please.
A. Yes, yes, yes.
Q. Was he a director of the SOTO at that time?
A. Mr. Ellis? Yes.
Q. Would you read the portions I've underlined, please?
THE COURT: Well, are you going to move for the admission of this into evidence?
MR. MacKENZIE: Yes, I am, Your Honor.
THE COURT: Well, then, it isn't necessary to take up time.
MR. MacKENZIE: All right.
THE COURT: You've marked my copies and so I can --
MR. MacKENZIE: That's fine.
THE COURT: -- read them. There is no sense the record to do that.
MR. MacKENZIE: All right.
BY MR. MacKENZIE:
Q. I show you Plaintiffs' No., 216 and ask you if you have written this letter?
A. Yes, un-huh.;
Q. I'm not going to embarrass the Court by reading this [page 928] extremely obscene letter.
A. Oh, really.
Q. But I wanted to know if you oftentimes write such vulgar letters?
MR. MITTEL: Objection to the form of the question.
THE COURT: Well, the letter can speak for itself.
You've moved for its admission into evidence. I can read it. Let's leave it at that.
BY MR. MacKENZIE:
Q. My question is this fundamental, I think, Mr. Motta: How do you in the form of writing such letters, in the form of dealing with people such as Ellis and discussion murder in that letter, how can you say that you carry on the spirit of the Ordo Templi Orientis, the spirit of Aleister Crowley?
A. I think, sir, that you should leave that for the Court to decide.
Q. Because I would like to hear your answer.
A. You just heard it.
Q. You don't have an answer?
A. Would you not consider that your question was rhetorical?
I am here. [page 929]
Q. Do you feel you carry on the spirit of Aleister Crowley?
A. Yes. We are not hypocrites.
Q. And isn't a portion of the OTO credo: "Love is the law"?
A. I don't know.
Q. Do you think you exemplify that spirit?
A. I try to.
Q. I'd like to show you Plaintiffs' Exhibit. 220. Do you recognize. Do you recognize that letter?
A. Yes, uh-huh.
Yes, I do.
Q. And are those your handwritten notations in the columns?
A. Yes.
Q. On page 2 of this letter under "not true," you write:
"Saturnus knew of this,
but this is immaterial
since the Eleventh Degree
cannot, as such, be OHO,
only a Tenth Degree. The
authority of the Eleventh
Degree is spiritual.
He is the link between the [page 930]
A.'.A.'. and the OTO."
A. Yes.
Q. Now, do you claim that you are that link? Are at the level where you link the A.'.A.'. and the OTO?
A. Forgive me for taking some time. I have to think.
I am not the only one.
Q. Well, what I'm putting to you is this, and this is the question: Did you not reach a certain level in the A.'.A.'. and then having reached that level claim that there was a link to the OTO and therefore became an OTO member?
A. No.
I was an OTO member before I reached that level.
Q. I show you Plaintiffs' Exhibit 221.
A. Is there anything you want me to read in it?
Q. Well, is this a letter in which Mr. Yorke tells you the contents of Mr. Germer's will?
A. Yes.
Excuse me a moment.
Yes, this is his description of the will. And later he sent me a copy of it. I asked him to.
Q. Did you not have any knowledge of where that will was before you had received this letter?
A. No. [page 931]
Excuse me. Is this the Crowley -- Crowley's will? I thought you said Germer's will.
Q. I'm sorry. I don't want to mislead you. I had thought that, too.
A copy of Crowley's will.
A. Is this the document you wanted to give me?
Q. No. We don't need to talk about that.
What I wanted to ask was when you first found out that Karl Germer had left -- or Karl Germer's will said he was leaving things to the Order rather than to any one individually?
A. He left it to the Head {SIC a.b. "Heads" -pla} of the OTO.
Q. Had you believed, prior to finding out what his will stated, that you were named in his will?
A. I was told so by Mrs. Germer.
Q. And when did you then find out that he had not named you in his will but left things to the Head of the Order.
A. The heads.
Q. To the Heads of the Order, excuse me.
A. When Mr. Yorke sent me a copy of the will.
Q. And --
A. Excuse me.
But until then I did not know anything for sure. [page 932]
Q. And isn't it at that time that you started to claim that you were a Head of one -- or one of the Heads of the Order so that you could share in the proceeds of that will?
A. Obviously.
But I was.
Q. And isn't it at that time that you first started to activate the Society Ordo Templi Orientis in the United States?
A. After that, no. No.
I only started to activate the Society Ordo Templi Orientis in the United States several years after it became clear that the people who were working here were not doing it either with authority or with competence.
Q. What I'm suggesting is that you did not take any action in order to secure yourself a right in the library until you knew that the Heads of the Order were to get it, and it was at that time that you first started asserting that you were Head of the Order of a country. Isn't that correct?
A. I'm not sure what you're trying to say, and it's very difficult for me to answer a question truthfully, because that was a very difficult period of time. I was trying to find out the facts about the OTO. [page 933]
But whatever my answer might be, you forgive me for saying so, this line of questioning is immaterial because whether I was a Head of a Lodge or not, as a member of the Ninth Degree and as a member of the OTO, I had a right to share in the library. And even if there were any question about my being Outer Head of the Order -- even if I were not the Outer Head of the Order, Mr. Metzger would be.
Q. Does --
A. Mr. McMurtry is not and will never be the Outer Head of the OTO.
Q. Doesn't Karl Germer's will say he is leaving these materials to Heads of the Order.
MR. MITTEL: Objection; irrelevant. If he's inquiring about Mr. Motta's state of mind, that's one thing. But it seems to inquire as if the will had some legal meaning.
MR. MacKENZIE: It was knowledge of the contents that first motivated Mr. Motta to claim membership in the OTO in order to share --
THE COURT: Okay. Overruled.
THE WITNESS: I really don't think so, sir. But as I said before, that was a very difficult period. I would like to answer your question honestly, but I can't. [page 934]
MR. MacKENZIE: Your Honor, if I could ask for just a brief break. I have a number of direct questions, pages that come on direct. I'd like to ferret out as much as I can along common lines.
THE COURT: All right. Take your time.
BY MR. MacKENZIE:
Q. Mr. Motta, how many levels up have you risen in the A.'.A.'. organization?
A. Analytical, three. I believe it's Magister of the Templi.
Q. For those who don't know, how many is that from the bottom?
A. Eight.
Q. It is eight.
And isn't the first degree for seven years?
A. Yes -- actually, no, not -- ten is the first.
I was on probation. The probation is outside the grade. The probation is a year.
Q. Is the Eight Degree the highest degree?
A. No.
Q. Are there other people at your level?
A. Yes, but not under our system of discipline.
Q. Okay. And you were doing the A.'.A.'. work under Karl Germer?
A. You mean my training? [page 935]
Q. Yes.
A. Yes.
Q. Is it fair to say that Karl Germer preferred the A.'.A.'. to the OTO?
A. He wanted people responsible in the OTO to be trained in the A.'.A.'., first of all, yes.
Q. Do you know if he had an aversion to initiate the people in OTO?
A. He was once -- in Mr. McMurtry's letter that's the verb again without -- yes, he had an aversion to initiating people who were not prepared to do so.
Q. Okay. At the time of his death what degree in the A.'.A.'. had you achieved?
A. Me? I was the Zelator of the A.'.A.'. But he had written me, as Crowley had done to him many years before, that I was already Magister of Templi, but I wasn't to recognize that.
Q. As well as Zelator, what level number is that, Third, the First, the Second?
A. It's the Second.
Q. The Second?
A. Um-hum.
Q. So it took you approximately ten years to get the Second Degree?
A. Some people have never made it. [page 936]
Q. But since Mr. Germer's death, you've climbed all the way up to the Eight Degree?
A. The Magister can belong to any grade of A.'.A.'. It's not -- it would take hours to explain and the explanation would be partial, no matter what.
Q. Okay. I'd like to show you Defendants' Exhibit 23, which is a letter addressed to you from Karl Germer, and ask you to take a long look at the third paragraph on the first page, if you would?
A. Would you point it again, please, sir?
Q. See this paragraph (indicating)?
A. Do you want me to look at the entirety of that?
Q. I would like you to read it. I'm going to ask you some questions.
A. Yes.
(Witness pursues document.)
MR. MITTEL: All right. If I could take this and --
MR. MacKENZIE: This is Defendants'.
BY MR. MacKENZIE:
Q. Now, this is where he's talking about this "adoration, some women get impregnated"; is that correct?
A. Not necessarily, no.
There was an adoration and some women had [page 937] sex.
Q. Well, he's saying now in their suspicion is not in your mind so there was the child as all of this; is that correct?
A. No.
Mr. MacKenzie, this involves people who are dead and who were respectable people. Do you think this is necessary?
Q. No. I'm trying to elicit testimony, Mr. Motta.]
THE COURT: What does this have to do with this lawsuit?
MR. MacKENZIE: The sentence is that -- Mr. Mittel introduced this letter and this paragraph specifically -- the contention is this, as I understand it, because Mr. Motta is a Ninth Degree, one other thing is that you can have sex without impregnation.
THE COURT: What has that got to do with this case?
MR. MITTEL: I'[m not certain. The contention is one can have sex without impregnation. Although if that is possible, I think I want to learn and sell it for lots of money.
MR. MacKENZIE: Well, it is my understanding that.
THE COURT: Well, I think actually that [page 938] I'm not concerned and that kind of testimony hasn't been given, so pass on to something else now.
You are going to have 15 minutes more, Mr. MacKenzie, with Mr. Motta, and you are only going to cloud your case and we are going to rest on all the evidence by six o'clock tonight.
MR. MITTEL: That's fine with me.
THE COURT: So you had better gather your evidence all together.
BY MR. MacKENZIE:
Q. I'd like to show you Exhibit 34 which has been previously identified as a letter you had written to Mr. Germer.
A. Yes, sir.
Q. And Defendants' Exhibit 5 is his response to your letter?
A. Yes, sir.
Q. Didn't you ask him the succession H, and the situation of the OTO?
A. Yes.
Q. And I'd like you to look at the response and tell me if that is his response to it?
A. You would have to point out --
Q. Well, I think it just makes it clear. There is no H answer in this? [page 939]
A. Oh, umm.
Q. So, if you had been a Ninth Degree, what I'm suggesting is do you think he would respond to your question about what's going on with the OTO?
A. Yes, but not to tell him how many members in the world, et cetera, et cetera, et cetera, et cetera, et cetera.
Q. Well, if you knew that, why did you write it?
A. One can try, can't one. I might catch him unawares. My pupils do that to me all the time. And sometimes they do if they have --
Q. Well, speaking of pupils, did you not testify in the * Maine trial that you only had five members?
A. of the OTO, yes.
Q. How many publishing ventures did you collaborate with Karl Germer on under the name of Thelema?
A. Two. "Liber Aleph" and the "Book of Lies."
Q. And what is it the "Book of Lies" that you burned all the copies?
A. No. No. It was the book, the Portuguese that I wrote, with permission, knowledge, his knowledge about the OTO, in which I may have included some criticisms of the communists. And when the Junta took over I had the book destroyed.
Q. You mentioned in one of the exhibits introduced by [page 940] the defendants that you were guided, or it stated in a letter you were guided by the Supreme Hierophant {Spelling corrected, phonetic in transcript --weh}. Do you remember that?
A. I did not state that.
Q. No, you did not state that you were by -- well, I'm looking -- do you know what a Supreme Hierophant is?
A. This is from Karl Germer.
Q. I'm sorry. Could you tell me whether that is an OTO term?
A. No.
Q. No. Okay.
A. Excuse me. It's not an official OTO term. It can be used by a member of the OTO. It can be used by anybody.
Q. Well, I imagine any work can be used by anybody.
A. Exactly.
Q. I think you testified that you sent Mr. Gunther a patent to do SOTO work in America?
A. Yes, I did.
Q. Could you explain how you were able to send him one but you couldn't give one to Jim Wasserman when he asked you?
A. Mr. Wasserman was not always as polite a guest as he could have been. He was already my probationary in A.'.A.'. [page 941]
Q. Well, let me stop you there.
A. You asked me that question. Don't you want the answer?
Q. Well, please express your answer, then.
Had you told him the reason you couldn't charter him was because he was from America?
A. Yes, I told him that.
Q. Oh. Then why were you able to charter Mr. Gunther in America? Were you lying again?
A. Mr. MacKenzie, let us suppose for a moment that I am not claiming that Outer Head of the OTO, that I'm not the Outer Head of the OTO. Let us -- but I am a least a sincere member of the OTO, for a moment.
As long as there were people chartered or candidates doing work in the United States of America, the Outer Head of the Order would not initiate any Americans in another country when that person could return to his own country to be initiated there where he lives. We try to improve all countries, that we cannot favor one over another.
Q. Um-hum.
A. Now, I would have -- to me Mr. Wasserman's initiations -- I have a proper reason. I had just changed the rituals and I did not trust him enough to give him the new rituals. And I did not want to hurt [page 942] his feelings by telling him so.
You may ask: Why did I give him a power of attorney?
I had to do that. It was my duty as his teacher. You are guilty or innocent in a country, you are guilty to the government, and you have to prove your innocence. In this country you are innocent until you are proven guilty.
I think it should be the same thing in all countries, you are considered innocent until you are proven guilty.
Q. How old was Sascha Germer when she died?
A. I really do not know. I believe that she was older than -- she looked much younger than she was. She was in her seventies or eighties when she died. She always looked very well preserved, crispy, to me.
Q. Mr. Motta, Defendants' Exhibits A, B, and C and D are copies of trademark registrations. Are you familiar with those four that are attached to the Complaint?
Excuse me, attached to the Cross-Complaint?
A. Yes, sir.
Q. Okay. I'd like you to look at one about the OTO. It states it was filed April 5th, 1983.
Now, is there any reason that you rushed out to file this after this lawsuit had been instituted? [page 943]
A. This was done by my attorney, so I wouldn't be able to answer, really.
Q. I don't remember if I asked you specifically, but the ISBN number, as it appears in your book, the "Equinox" --
A. No, this was the ISBN number of the Thelema Publishing Company,. Now, the Thelema Publishing has done my business. We have the ISBN.
Q. That was the one in which you published under again the Thelema Publications Company?
A. At that time a Mr. Cabot was my student.
Q. That's correct.
A. While at the time he had a straw publishing company (phonetic) {SIC s.b. "Troll Publishing Company" -- pla}. I asked him to change the name to Thelema Publishing Company in respect to Mr. Germer.
Q. Okay.
A. Eventually he went out of business, and I took the name Thelema and continued to ...
Q. There's something that I want to make clear about that, why you believe that people who are not in the OTO now need a charter from Karl Germer to continue work if they received a charter previously. Why did you say Crowley charters --
A. They have received charters previously.
Q. Why are Crowley charters invalidated upon the death [page 944] of Karl Germer?
A. Of Karl or of Crowley?
Q. Why were they --
A. In the event of the death of Crowley, they had to be recognized in order to continue to be validated, but they usually are.
Q. Is that stated somewhere? Is that in the "Blue Equinox"?
A. No, I don't think so, but maybe it is.
Q. Ok, okay. You also mentioned that charters from not only Karl Germer, but Sascha Germer -- or recognized by Sascha Germer?
A. I am not familiar with the -- I wasn't familiar with the law and meaning of the law, really, in your law. I had to come to United States and do something legally. I'm still not very familiar with the law.
Q. Well, do you agree now --
A. I believe that the other that I had -- I had that as a service. But by that, at the same time, Mr. Gunther had already done it.
I tried to find him. I asked Mr. Starr to search for me.
Q. You mentioned that the library should be kept in the lodge or the profess house. Is that correct?
A. Will you say that again a little more clearer, [page 945] please?
Q. Yes. I though you had said you believed that the library should be kept either in the lodge or in the profess house.
A. I did not say that.
Q. No?
A. But the library should be kept accessible to all members, yes.
Q. Well, did you mention the term "profess" --
A. The term?
Q. Yes, "profess." P-r-o-f-e-s-s.
The term is "profess."
I see no one's recognized it. I won't pursue it.
You also mentioned that a circulating library should be available.
A. There should be a circulating library, it is my judgment, if at all possible.
Q. That's something that --
A. I believe it's something that anybody thinks is possible, but it's certainly a right and privilege of the brethren.
Q. It specifically states that there should be a library?
A. Actually, it states -- I can't state if from [page 946] memory, of course.
Q. Yes.
A. -- that a circulating library should be established as soon as possible.
Q. Mr. final set of questions concern the "Liber AL"
You had mentioned that these had been published in the material of -- parts of this, one or two portions from the "Liber AL", had been published and a 100 copies of the "Ararita"; is that correct?
A. No. I think there is some confusion there. I was not speaking -- are you talking about a book under public domain or a book not under public domain?
Q. You said that one was public domain, because only --
A. Yes, "Liber Trigrammaton."
Q. No.
A. You meant this?
Q. No. What I want to know is how do you know there were only a 100 of them printed?
A. I don't know. I said I suspected. But these are very hard to come by. I have only seen five of them in my lifetime and one of the belonged to Karl Germer and two of them he sent to me.
Q. And it's from that that you concluded that there were only 100 printed? [page 947].
A. It may be only 50. They were very expensive books to produce. If you look at them, you see that.
Q. All right.
A. Very, very expensive. Vellum, laminated gold. The ink, the gold ink. The gold content very difficult to produce, beautiful literary works.
MR. MacKENZIE: I have no further questions, Your Honor.
Thank you.
THE COURT: We will take a five-minute recess.
And then, Mr. Mittel, you have an hour to complete your case.
MR. MITTEL: Thank you, your Honor.
(Brief recess taken.)
MR. MITTEL: Defendants call Paul Stuart.
PAUL STUART,
called as a witness by the defendants, having been first duly sworn, was examined and testified as hereinafter set forth.
THE COURT: Would you state your full name for the record and spell your last name, please?
THE WITNESS: Paul Stuart, S-t-u-a-r-t.
MR. MITTEL: Before I start with him, Your Honor, I wish to state my objection to the hour limit [page 947] for the remainder of my direct case, to one hour, but I do understand.
THE COURT: Objection is noted.
DIRECT EXAMINATION
BY MR. MITTEL:
Q. Mr. Stuart, where do you live?
A. In San Jose.
Q. Are the son of Phyllis Seckler, a party in this litigation?
A. I am.
Q. Have you at any time received any documents relating to Aleister Crowley or Karl Germer from her?
A. You mean books?
Q. Yes, sir.
A. Yes.
Q. Have you ever received any letters written by either of these gentlemen?
A. Karl Germer? No.
Q. How about Mr. Crowley?
A. Oh, Crowley? No.
Q. Let me direct your attention to the period around April 1979. At any time since then has your mother spoken with you about the contents of the Crowley-Germer library which she had in public storage in Livermore?
A. I can't say since when, but I've heard bits and [page 949] pieces over the years.
Q. Are you aware that it vanished from public storage where she had put it in April of 1979?
A. I had forgotten all about until yesterday or the day before yesterday.
Q. Did she ever talk to you about that?
A. Yes.
Q. Did she ever state to you that she knew where the material was that had been in public storage?
A. No.
Q. Do you know someone by the name of Tom Whitmore?
A. No.
Q. Do you know someone by the name of Tim Trechel (phonetic)?
A. No.
Q. Have you ever lived in a house at 660 East 66th Street in Oakland?
A. No.
Q. Do you know anyone who lived in a house at 660 East 66th Street in Oakland?
A. No.
Q. Have you ever given a box of material to anybody who lived in a house at that address?
A. No.
MR. MITTEL: Thank you. I have no other [page 950] questions.
Oh, I have one more.
BY MR. MITTEL:
Q. Have you ever spoken with your sister, Lisa Doyle, about any of the subject matter that I just asked you about?
A. Not to my knowledge. To my memory, we may have at one point, but I can't give you any particular time.
Q. Do you know offhand if she's ever been in the house on 66th Street?
A. I would doubt it, but I don't know for a fact.
Q. Do you know if she knows Tom Whitmore?
A. No.
Q. Do you know if she knows Tom Trechel?
A. No, I don't know that.
MR. MITTEL: No further questions.
MR. MacKENZIE: No. questions.
THE COURT: Thank you very much for coming in and testifying, Mr. Stuart.
(Witness excused.)
MR. MITTEL: Defendants call Phyllis Seckler.
PHYLLIS SECKLER,
called as a witness by the defendants having been previously duly sworn, was examined and testified [page 951] further as hereinafter set forth.
THE COURT: Miss Seckler, you are still under oath from your prior testimony.
THE WITNESS: Yes.
DIRECT EXAMINATION
BY MR. MITTEL:
Q. Good afternoon, Miss Seckler.
A. Good afternoon.
Q. You were asked to go get your diaries and review them to determine whether there were any entries about the Crowley=Germer library.
Have you done that?
A. Yes, I have.
Q. Could you read to us -- are there any entries that refer to the Crowley-Germer library.
A. There were entries when we retrieved this library in 1978 {SIC ?! date not right --weh}, and there were some short entries about when it was stolen from me in 1979.
Q. Could you read to us the entries when it was stolen in 1979, please?
A. Yes. Do you want me to read about Monday, April 2, 1979, when this was first discovered?
Q. Yes.
A. "Loaded car with my books
and went to storage. The [page 952]
storage was empty,"
underline, exclamation.
"I immediately suspected
Helen. Second thought G.
Helen, because even the
boards and bricks were gone.
Report to police official,
made out report. H.P. Smith
did not have current storage
there."
We couldn't find her name for several months back.
"Went home, if somebody
phoned. Phoned Bill. My
first ploy revealed that he
knew nothing of it. We
easily narrowed it down.
Phoned Helen's grandchild,
revealed Helen was seldom
there and her phone was
transferred to her son's
phone. When it was reported
to him he said he would tell
her.
"I said if this is" --
This is another friend, Lon. Lon, that's a friend of [page 953] ours.
Let's see.
"New ideas down. Knowledge
of where library was, known
all over Berkeley.
"Also at the storage company
it was evident and clear all
one had to do is phone the
storage company or go there
and they would give out infor-
mation.
"My suspicion in
Christie's and G or business,
all they would need is a
locksmith or know how to pick
a lock.
"G, a test.
"All they would have to do is
visit or phone all the storage
locations in the area and they
could get information!"
Exclamation point.
"Phoned Helen's friend"
"and she took" -- "she had my
address. [page 954]
"Phoned her an hour and a half
later and she couldn't find Helen.
Left message. It was an
emergency and very important.
"B doesn't know if Helen would
contact her in the next few
days.
"B was leaving and would be
gone a week.
"RAM went C, find him, had
phoned Russ and went after
Helen.
"So phoned Bill again and
reported on my repairs and
claimed that Russ couldn't
do it and wanted RAM. And I
said 'absolutely not'."
Then I said --
Q. Let me stop you again.
Is RAM Mr. Motta?
A. No.
Q. Who is that?
A. Friend of ours.
Q. What's the name?
A. Richard Allen Miller. [page 955]
"Sent total up. Maybe John
and Bill said it was a
possibility. And I am
to type up a list of things in
boxes" in paren, "(that list
which I have to Bill, great
relief)," paren.
"This list is almost done,
and little bit of detecting maybe
could be done right after this.
"JD phoned and was calling
collect, and it was a relief.
And I was so hoping he and
Bill will take over the
investigation."
THE COURT: Pardon me, please.
MR. MITTEL: Your Honor, would it ease --
THE WITNESS: I had told J all the details I knew. Somewhere in this I did, so on.
MR. MITTEL: I am sorry.
THE WITNESS: "Hire
detective. Threaten to
sue storage company for
50,000 and other procedures."
Let me see now. [page 956]
BY MR. MITTEL:
Q. Are we still on April 2nd?
A. Yes. I was trying to investigate all this and was going nuts.
Let me see now.
Oh, there was a silly little notice about which I investigated -- silly little notice from another friend of ours that went nowhere. So I had that in here. And that's not necessary.
April 4: "Working on
inventory, take to
Livermore police."
Q. Well, let me ask you a question. Hadn't you made some list; you already had a list of everything?
A. Yes. That was the inventory I made that was mentioned earlier.
Q. And that's the document that's 21 pages?
A. Yes.
Q. Let me just show you the pages first. This is Defendants' Exhibit 72. That's the first page of it (indicating)?
A. Yes.
Q. Thank you.
Go ahead, please.
A. "Phoned Bill about 3:30. We [page 957]
discussed threats the OTO
might have. I came to the
particular conclusion that's
for the law. I assisted.
"G's emotion over the loss of
AC-Germer. He didn't have
any knowledge and knew not of
it at all."
All right. Now, April 16:
"Went out to Livermore, Public
Storage, picked up two clues:
Cigarette pack, cellophane,
little piece at top and pop-top
of a bear can and some leaves,
including as many as thought
possible."
"5:40, April 20:
Phoned Bill in regards to
details in K letter, typed
letters, Chris and Bill.
give Bill names and addresses
who received Volume 2, No. 2
of ITC with the story of the
library rescue and hoped to
be clues to the theft itself." [page 958]
And i have been going on like that for years. That's it.
Q. Thank you.
When Mr. Wasserman went to California, he changed sides, didn't he?
A. No, he did not.
Q. When you said he changed sides previously, were you not telling the truth?
A. He changed sides eventually now, but when he first came to California --
Q. Oh, it was --
A. -- he did not change sides.
Q. He changed sides after meeting with you and Mrs. Smith and Mr. McMurtry?
A. It was some time later even after that.
Q. You didn't arrange for your daughter, Miss Doyle, to remove the library from Public Storage?
A. I certainly did not. She doesn't have any interest in this. Non of my children do.
MR. MITTEL: Thank you. No further questions.
MR. MacKENZIE: No further questions, Your Honor.
THE COURT: Thank you. You may step down. [page 959]
(Witness excused.)
MR. MITTEL: Defendants call Helen Parsons Smith.
HELEN PARSON SMITH,
called as a witness by the defendants, having been previously duly sworn was examined and testified further as hereinafter set forth.
THE COURT: Mrs. Smith, you are still under oath from your prior testimony.
THE WITNESS: Yes.
DIRECT EXAMINATION
BY MR. MITTEL:
Q. Good afternoon, Mrs. Smith.
At some point you became aware that a letter similar to Defendants' Exhibit 20-A or perhaps Defendants' Exhibit 20-A was being circulated by Mr. McMurtry; is that correct?
A. I don't know what 20-A is.
Q. Let me find it for you.
It's a letter about Mr. Motta's sexual life or his sexual organs.
A. What is the question?
Q. At some point did you become aware that such a letter was being circulated by Mr. McMurtry?
A. Yes. [page 960]
Q. And what did you find out exactly?
A. It was just gossip that I heard.
Q. Who did you hear it from?
A. I couldn't tell you.
Q. Was it Miss Seckler?
A. I couldn't tell you.
Q. Do you remember, for instance, whether you were told the Mr. McMurtry and Mr. Heidrick were circulating a letter in Berkeley?
A. Say that again?
Q. Were you told or was that gossip that Mr. McMurtry and Mr. Heidrick were circulating the letter in Berkeley?
A. Oh, I don't think there was any mention at all.
Q. Do you have any recollection of how many times you were told they had shown it to other people?
A. No.
Q. do you know if they were showing it to OTO members?
A. No.
Q. Do you know if they were showing it to people who were not in the OTO?
A. No.
Q. Do you recall that both of their names were mentioned as being involved in showing the letter around? [page 961]
A. Both of their names?
Q. Both Mr. McMurtry and Mr. Heidrick.
A. No.
Q. Just Mr. McMurtry?
A. I couldn't pinpoint it to any one person at all.
Q. Can you remember any names that were mentioned as having been circulating that letter or those letters?
A. No.
Q. In December of 1977, you offered to send of Mr. Motta's letters back to him.
Do you remember that?
A. I did? I did?
Q. Yes, Ma';am. Didn't you?
A. No.
Q. So you're not -- you were not then talking with Phyllis Seckler about sending Mr. Motta's letters back to him?
A. No. I didn't have Mr. Motta's letters.
Q. Except those?
A. I don't know.
Q. I would have to ask her?
MR. MITTEL: No further questions, Your Honor.
THE COURT: Thank you.
MR. MacKENZIE: Just one question. [page 962]
CROSS-EXAMINATION
BY MR. MacKENZIE:
Q. Do you remember what year it was in which you heard about this going on?
A. No, I don't remember. But I figured out it must have been -- no, I can't say I remember.
Q. Was it before 1980?
A. Oh, yes.
MR. MacKENZIE: No further questions.
MR. MITTEL: Nothing on redirect.
THE COURT: Thank you.
(Witness excused.)
MR. MITTEL: Defendants call William Heidrick.
WILLIAM E. HEIDRICK
called as a witness by the defendants, having been previously duly sworn, was examined and testified further as hereinafter set forth.
THE COURT: Mr. Heidrick, you are still under oath from your prior testimony.
THE WITNESS: Yes, Your Honor.
DIRECT EXAMINATION
BY MR. MITTEL:
Q. Mr. Heidrick, are you employed?
A. Self-employed. [page 963]
Q. But not by the Ordo Templi Orientis?
A. Oh, no. There is no salary at my level {SIC s.b. "at any level" -pla} in the Order.
Q. What does your employment consist of?
A. Well, we rent out the family farm, and I have an annual income from that.
Q. You have stated you are the Archivist at the Ordo Templi Orientis in Berkeley?
A. Yes, I have that position. Essentially it's looking at large masses of paper, when that volume is recorded, I have to make some sort of a list or record of that. That's required.
Q. When you get new material?
A. Well, that depends on purpose. At this point the volume of this material is very great and the timetable to work it is small. That means collecting supplies and preparing for this case. There have been earlier times I have -- I had to look at information, information among these papers, trying to find better ways of preserving them from damage and rodents and things.
And, of course, I've made arrangements for eventually microfilming of these things. We have some 3,000 feet of film on {SIC s.b. "film, a" --pla} procedure, process of developing, about one cent for five foot of film, things like that, various duties. [page 964]
Q. In this case -- correct me now if I'm wrong -- you produced documents on several different occasions, first of all, in December of 1983?
A. That is correct.
Q. And there were about 300 pieces of paper that you generated for us then?
A. I think it was a much larger volume.
Q. I -- Well, let me correct that. Three hundred documents, some of which had more than one page?
A. Yes, a substantial amount.
Q. And then another 155 or so in perhaps June or July of 1984?
A. I made an attempt to deliver five cubic feet of paper to the office of Wahler {SIC s.b. "Walker" -pla} and Bull (phonetic), and I was only able to supply some of it by so inviting the secretary to keep photocopying while he was out of the room.
Q. And then more documents in December of '84 and then again in April of '85?
A. Small amount.
Q. Now, you say that you only produced, say, 300 documents in December of '83 and those communications went along --
A. The two large batches or essentially the first batch came from what we had on hand. And the second [page 965] largest was the Whitmore recovery.
And after there were various things requested by several -- if my memory serves, some of those documents we supplied more than once, but with such a volume of paper moving I couldn't say whether that's the Director's group or my group {SIC s.b. "that's the requestor's fault or my fault." -pla}.
Q. Do I understand that the Whitmore recovery contained material that was in the crowley-Germer library itself?
A. It was in essentially two or three categories. I'd say three categories. Personal, disbarred it.
Q. By "personal," you mean checkbooks, personal --
A. That;s overlapping with checkbooks, but money rewards or things like that, fellow album material {SIC s.b. "money receipts or things like that, photo album material" -pla}
Q. What's the second category?
A. The second category is substantial material after the Credo {SIC s.b. "the Crowley" -pla} (phonetic) collection. And beyond that, most of the material from the time of Aleister Crowley's life appears on page 26 of Karl Germer's list of archives.
Q. And that is, so we are sure we are talking about the same thing?
A. I could be off on most {SIC "most" should be in quotes --weh}, but that was my impression.
Q. Let me show you, beginning then on page 26 of Defendants' Exhibit 39, and let me see if that's the article by Germer in the Defendants' Exhibit to which [page 966] you are referring?
A. That's exactly so, and his particular page 26, special file, small steel cabinet, containing mainly OTO documents, that's what turned up most of it, but not all the pages by any means.
Q. Now, in the course of the case, and I believe it was in the December production, you turned over -- and by "you," I mean the plaintiffs turned over --
MR. MacKENZIE: Might I just interrupt for a moment?
She would like to get her car out of the garage. Will she need to return?
THE COURT: No, you are free to go.
Mrs. Smith, you can come back if you like, but you are excused.
BY MR. MITTEL:
I show you a series of documents, Defendants' Exhibits 70, 68-B, Defendants' Exhibits 68-C. You see those?
A. Um-hum. I see them.
Q. Were you here when Miss Seckler testified earlier?
A. Yes, I was. If you referred to these documents, at least 68-C and B, I was here when you referred to that.
Q. All right. Do you recollect her saying that she did not have those in her possession? [page 967]
A. I am afraid I don't think so. The secretary refers -- are you referring to Whitmore, which was described earlier?
Q. I am done with Whitmore. I have changed subjects.
Let's just focus on that exhibit in front of you.
A. Yes.
Q. Okay. Miss Seckler testified that she did not give those or the original of those documents to you.
A. The first time I have seen them is in conjunction with this case here in this room.
Q. you did not give them to Miss Seckler?
A. They could have passed through my hands in a bundle of which I didn't investigate, but that's been very rare, and I would doubt -- this item 75, I have seen that, of course.
Q. And from whence did that come?
A. I believe all -- I believe this item 70 was produced by Phyllis Seckler with other papers which were also provided. But 68-B and C in this proceeding -- I guess I have blind spots, but I don't think I'd have this big -- I don't remember seeing them outside of this room.
Q. did they -- for instance, do you know if they came from the Whitmore find? [page 968]
A. I went through that three or four times, down to the point of trying to find scraps of paper glued together. They were not in that.
Q. Can you tell me how many members the California Corporation, the corporation that is the plaintiff in this case, had in each of the years, say, January '78 through -- I am sorry -- 1978 through 1985?
A. Well, I can give you approximations.
Q. That would be great.
A. So would you like --
Q. Just give me --
A. I'll give your approximations.
Q. Let's start with 1978.
A. Wait. There was a considerable changeover that year. I would say we probably cam in with 22 or 25 and ended with 50 to 70.
1979, we began to grow. And I think we might have gone above 200 that year, but I doubt it.
Q. 1980?
A. Through lesser billing, I believe we didn't have more than 300.
Q. '81?
A. We hadn't recovered from the slump. We were three hundred and something. I'm not sure.
Q. 1982? [page 969]
A. '82 we were beginning to improve again. And that was about, oh, we must have been around 500. That might have started a bit in the year, before 500.
Q. I'm sorry. 1983?
A. 1983 began creeping up also. We got behind in billing for dues, so some of it -- I would say we got probably as high as 800 in any -- 200 were not real; they would have paid or been removed.
Q. And 1985?
A. Presently minimum, until next month when I start cracking the dues again, is 770 members, plus or minus five.
Q. What are the annual dues?
A. Those vary with Degree.
Q. Can you give me some idea what the income is from dues that the organization earned in each of those years?
A. Oh, my goodness. You are asking -- a treasurer should have his records before him.
It's something I'm supposed to be concise on, and anything else, I'm very nervous making an estimate.
Q. Tell me, if you will, what the dues are, or if you [page 970] can recall?
The Minerval is $15 a year.
Q. And for Ninth Degrees?
A. For the Ninth Degree and the Tenth, the amount should be, if collected, approximately three times, 168, dues. We have been going on the names {SIC s.b. "on the values" -pla} from the old list, but at present the situation is not for direct collection from older members. We have an exception for 30-year members.
Q. Is the income from dues for any of this greater than -- greater than a thousand dollars, do you think?
A. I think it's -- if I could just be close about my figure, despite any inferences on judgment, between 3,000 and 4,000 is not unusual.
Q. Since 1980, perhaps?
A. Since 1980 and since its gotten billed higher, sometimes it's as high as six or seven thousand. I think it's up to that amount.
Q. Sixty-seven hundred, you mean?
A. Yes.
It has been going up each year to some extent, except this year it's gone down to about eight. We haven't been able to perhaps travel and initiate in some places, and I could that a problem. Grady's illness has sort of limited us for special events in the [page 971] field.
I would also mention that there are other factors that assist in direct sales.
Q. Have you, has the organization extended to Europe to do recruiting?
A. Recruiting? We can do that provision of our "Holy Book" {SIC s.b. "We can't do that by provision of" -pla}. "Recruiting" is the wrong word, and I didn't mean -- well, I don't understand.
Q. For purposes of at least talking to them and doing initiation of people that are interested?
A. Invite initiation? We've sent people over there to do that twice so far this last year.
Q. And in years previous, as well?
A. No, not in recent time.
Q. In 1977 or '78?
A. No. In '77 and '78 we were still spreading out within the United States. We had offered and continue to offer an associate membership, and that is much more widely spread than the initiate form.
Q. Can you explain to me the meaning of this language in Defendants' Exhibit 69-C, which is a letter you wrote to Gerald Yorke in July of 1977?
A. Oh, yes. That refers to Steven Gelhardt {SIC s.b. Steve Englehart -pla} (phonetic), who had planned a trip to Europe. He is the -- his degree was not sufficient for offering [page 972] initiation, so we could just give him the paper to see -- he wanted to use -- and talk to the people. And that was what that was all about.
Q. And would you read that sentence, please?
A. Sure.
"To that extent we have a
'Bambisdor' {SIC s.b. "Ambassador" -pla} (phonetic) traveling
about in Europe with the permission
of Caliph Hymenaeus Alpha."
Q. You heard testimony about a letter or letters of Mr. Motta's discussing his sexual life?
A. I've heard quite a bit about that, yes, sir.
Q. Did you ever see any of these letters?
A. I saw something that I was told was such a letter, but at the time -- I don't want to be facetious -- I was so bored by the concept of reading yet another letter, having answered some 200 in a few months, that I just skimmed over what was handed to me and handed it back.
Q. And that was the only time you've ever seen that letter?
A. If, in fact, it was that letter. I think it was from him. I don't even recollect that it was, but I presume it's the letter described.
Q. And who showed it to you?
A. Somebody in a room in which Grady Mcmurtry was [page 973] present. I was getting a little tired at that point. We were entertaining people and were to established our lodges, first of our groups. They had been discussion things, and Mr. Motta's latest book was one of them.
Q. And is that the context in which that letter was being circulated?
A. Yes.
Q. Did you ever know if that letter was circulated at other times?
A. That's the only time I can recollect. I don't have any other particular knowledge whether it was circulated or not.
Q. Have you heard that that letter was circulated on any other occasion?
A. I have heard that it might have been or something like it was circulated. But since I can't positively identify what it was in the first place, I'm at a loss to say one particular letter.
Q. do you have any sense of time or of the duration which the letter might have been or letters might have been circulated?
A. Well, I remember at the time I suggested that this wasn't the best idea, so I recollected after a year or so I didn't hear any more, because every time I heard that somebody was reading somebody's mail, I made a [page 974] fuss. And I believe it either stopped or I stopped hearing about it, one or the other.
Q. And when was the last time you heard about it?
A. As an actual event, rather than something not -- I didn't, just didn't like the idea.
Oh, it might have been 1979 or '78, somewhere in there.
Q. Okay.
MR. MITTEL: I have no further questions of this witness, Your Honor.
MR. MacKENZIE: Nothing, Your Honor.
MR. MITTEL: Your Honor, because of the rush I neglected to ask Miss Seckler something. May I recall her, please.
THE COURT: Yes.
Miss Seckler, will you take the stand?
MR. MITTEL: Is she still here?
Good.
PHYLLIS SECKLER,
recalled as a witness by the defendants, having been previously duly sworn, was examined and testified further as hereinafter set forth.
REDIRECT EXAMINATION
BY MR. MITTEL:
Q. Sorry to be so rude, ma'am. [page 975]
did you ever hear tell of a letter or letters of Mr. Motta's discussing his sexual life being circulated?
A. I heard gossip.
Q. When did you hear it?
A. I can't remember the year.
Q. Do you remember from who you heard it?
A. It was the same year that I wrote the letter to Mr. Motta offering him his letters back. And you've got that date.
Q. Let's make sure I have the right letter.
Is this the letter, December 1st, 1977?
A. Yes, um-hum.
Q. I don't know if I asked you this before: How did you happen to have copes of his letters.?
A. Because they were in the archives that were rescued from West Point.
Q. And what you did was -- were these letters that Mr. McMurtry had not taken to Berkeley?
A. I don't understand your question. Please rephrase it.
Q. Well, you said his letters were in the archives.
A. Yes. Motta's letters and Karl Germer's letters to each other were there.
Q. Right. And those archives were in storage in [page 976] Livermore?
A. They weren't in storage immediately, but they were in storage as soon as Mr. McMurtry left the house.
Q. And certainly they were in storage by December of 1977?
A. Yes.
Q. And were Mr. Motta's in storage?
A. I don't know how many of them were in storage, because I don't know what Mr. McMurtry took.
Q. So you would -- but you put in storage some of the letters and mr. McMurtry had some of the others?
A. Yes, whatever you say.
Q. do you remember from whom you heard the gossip?
A. No, I don't.
Q. Do you know whom it involved?
A. Whom it involved?
Q. Yes. Who was supposedly passing this letter around?
A. No, I don't remember that.
Q. Do you remember if Mr. Heidrick was mentioned?
A. No, I don't remember that.
Q. Do you remember if Mr. McMurtry was mentioned?
A. I don't remember. All I knew was that I had heard this gossip.
MR. MITTEL: If I may have just a moment, [page 977] Your Honor.
THE COURT: Yes.
MR. MITTEL: Nothing further.
THE COURT: Okay. You may step down, Mrs. Seckler.
(Witness excused.)
MR. MITTEL: Defense rests.
THE COURT: Defense rests. Okay.
Is there any rebuttal testimony by the plaintiffs?
MR. MacKENZIE: No, Your Honor.
THE COURT: All right. Now, what do you people want, to brief this, or do you want to submit it for my findings on the facts and conclusions of law?
MR. MacKENZIE: You mean --
THE COURT: I really don't think, as far as the law is concerned, that any briefing is worthwhile. It's your decision. It's what you think, if you want to try to organize the facts.
MR. MITTEL: It seems to me that, especially in terms of alternate findings, that we are asking you to make in terms of Mr. Motta is the Outer Head, even though that's precluded, but we've got to continue to make that a determination.
On the other hand, if he is not only -- only [page 978] an owner because he's a Ninth Degree member, as long as you said the change is responsive to the appropriate findings.
THE COURT: Well, what would you respond to appropriate findings?
MR. MacKENZIE: Well, I'm suggesting that perhaps rather than us organizing the facts, but maybe that is just not a good idea.
THE COURT: Well, what I will do is this: I will take the matter under submission now. And just as soon as I can get them dictated, I will send out my findings of facts and conclusions and drawing one or the other to the appropriate form of judgment.
The other option is to give you briefing time and then I will issue findings on the facts of law.
MR. MITTEL: May I speak with my client for a moment?
THE COURT: So it's up to you, whether you want to put more effort into the organization of it.
MR. MITTEL: We are prepared to let you do as you choose.
MR. MacKENZIE: Yes, that's appreciated, Your Honor.
THE COURT: Okay.
MR. MacKENZIE: Your Honor, I was going to [page 979] ask you one thing. Assume the plaintiffs get judgment, they would like the Court to continue in this matter for the very reason if you do grant an injunction, it would be easy to come back. I think any Court has the power, even though a judgment may be final, any Court has power to exert further jurisdiction over the enforcement of an injunction issued.
THE COURT: All right. The matter alone stands submitted. I will present findings on the facts and conclusions of law and get them out to you as soon as I can. And I will prepare a judgment based upon the findings of facts and conclusions of law.
Thank you, Counsel.
MR. MacKENZIE: Thank you very much, Your Honor.
MR. MITTEL: Thank you very much, Your Honor.
(The proceedings adjourned at 6:10 p.m.)
--oOo--
[page 980] --- this page is used in the Transcript for the certification by the Court Reporter Pro Tem. In as much as this is not a legally certifiable electronic document, the page shall remain blank to signify that this particular version is for research and not for legal representations.
---- Transcribed from the record with notes by William E. Heidrick, Grand Treasurer General, Ordo Templi Orientis.
***************************************************************************
The following is a transcription from paper copy, and may contain
errors of a typographical nature, copy by Bill Heidrick
transcribed 8/14/87 e.v., 2nd anniversary of the publication of the
Greater Feast of Hymenaeus Alpha, who passed away two days after the
filing of this document, 7/12/85 e.v.
***************************************************************************
UNITED STATES DISTRICT COURT FILED JUL-10-1985
NORTHERN DISTRICT OF CALIFORNIA
GRADY McMURTRY, et al )
Plaintiffs, )
)
v. ) No. C-83-5434-CAL
)
SOCIETY ORDO TEMPLI ORIENTIS, )
et al, )
Defendants. )
________________________________)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The action was tried to the court without a jury
from May 13 through May 17, 1985, and was then submitted for
decision. The court has heard the testimony, read the
exhibits, and weighed the evidence. The court makes the
following findings of fact by a preponderance of the evidence,
makes the following conclusions of law, and directs that
judgment be entered in favor of plaintiffs and against defendants
on plaintiffs' complaint, defendants' counterclaims, and
plaintiffs' counterclaims to the counterclaims.
For simplicity, plaintiffs, counter-defendants, and
counter-counter plaintiffs will be called "plaintiffs;" and
defendants, counterclaimants, and counter-counter defendants
will be called "defendants."
FINDINGS OF FACT
1. The organization and system of beliefs which is
called "Ordo Templi Orientis" or "OTO" is a mystical and
fraternal organization begun around 1900. The chief interna-
tional executive of OTO is known as the "Outer Head" or "OHO."
(end of page one)
Aleister Crowley became OHO in approximately 1921 and served
until his death in 1947. Crowley wrote, or rewrote from
earlier versions, many of the rituals, doctrine, and interpre-
tative and instructive literature of OTO. Crowley set forth
the rules of operation and procedures of OTO in numerous
books, essays, and correspondence.
2. OTO had and now has lodges where its members
meet. One such lodge, which existed during the 1930's and
subsequently, was Agape Lodge in California.
3. After Crowley's death, Karl Germer became the
OHO.
4. At his death, Crowley left all of his previously
undisposed intellectual and tangible literary property to OTO.
As OHO, Karl Germer took possession of all of the tangible
property of OTO around 1950 and moved the property to California.
5. Karl Germer died in California in 1962. No will
of Germer was offered for probate and the property of OTO
remained in the possession of Germer's widow, Sasha Germer.
6. Sasha Germer died in 1975.
7. In 1976, plaintiffs obtained an order from the
Superior Court of the State of California, Calavaras County,
"In the Matter of the Estate of Sasha Germer." The order
decreed that plaintiff Grady McMurtry was authorized to take
possession, on behalf of OTO, of certain property identified
as belonging to OTO. Pursuant to that order plaintiff
McMurtry and others took possession of properties which had
//
(end of page two)
formerly been in the possession of Crowley, Karl Germer, Sasha
Germer and OTO.
8. Plaintiff OTO is now a California Corporation.
It has a legal structure; is a membership organization; main-
tains records; has a set of beliefs; has an established set of
procedures; conducts regular meetings; conducts financial
transactions; initiates and promotes members; and follows the
beliefs and practices derived from Crowley and the prior
unincorporated OTO. It is a continuation of the organization,
beliefs and practices originally established and conducted by
Crowley and OTO.
9. Defendant Society Ordo Templi Orientis ("SOTO")
was incorporated in the State of Tennessee. SOTO is not the
continuation of the organization, beliefs and practices orig-
inally established by Crowley and OTO.
10. Defendant Motta is a citizen of Brazil. He has
for years been interested in the work of OTO and Crowley.
Motta has caused some literary works of Crowley to be pub-
lished, commented, and edited, in his own name and in the name
of OTO and SOTO.
11. Plaintiff OTO now owns, hold all right and
title to, has used, does now use, and has the right to
use: the name "Ordo Templi Orientis;" the initials "OTO;" the
various insignia, registers and symbols of OTO; al writings
and publications of Crowley which were not assigned to others
at the time of his death; the publications of other matters
pertaining to OTO; and the trademarks, service marks, and
(end of page three)
copyrights pertaining to the same. Defendants do not own,
hold, or have any right to use of such properties.
12. The name "Thelema" in connection with publica-
tions is a part of the property owned by plaintiff OTO.
Plaintiff Smith has used that name on behalf of plaintiff OTO
in publications since 1962. Plaintiff OTO has the rights to
the trademarks, service marks and copyrights of the name
"Thelema," and equivalents of that name, in connection with
publications.
13. Defendants have used the name "Thelema" in
publications subsequent to its use by plaintiffs. Defendants
do not have ownership of or the legal right to use the name
"Thelema" or its equivalents. Defendants' use of the name of
"Thelema" was without the consent of plaintiffs and consti-
tutes infringement of that name. Defendants' use of the name
"Thelema" in connection with publications has caused confusion
in the publishing industry and among purchasers of books, and
will if continued cause confusion in the future. However,
plaintiffs have not shown sufficient evidence of monetary
losses from that confusion to support an award of compensatory
damages for defendants' improper use of the name "Thelema."
14. Defendants' use, and purported registration of
trademarks and copyrights under the names "OTO," "Crowley,"
and "Thelema" were done in contemplation of this litigation
and were done without the rights of ownership of the property
purportedly registered and copyrighted.
//
(end of page four)
15. Plaintiff McMurtry is th4e acting OHO of OTO in
the United States and is the highest overall member. Plain-
tiff McMurtry was personally assigned by Crowley, and contin-
ues to own, a 25% interest in Crowley's "Magick Without Tears."
16. Defendant Motta is not the OHO or OTO.
17. In 19881 defendants published and distributed
certain books in California and elsewhere which contained
statements regarding the individual plaintiffs listed below.
Certain of the statements were matters of opinion, or were
matters pertaining to religious beliefs, and hence are pro-
tected under the First Amendment. The following statements
about individual plaintiffs were not protected and were
libelous:
a. Plaintiff Phyllis Seckler (nee Phyllis
Wade, Phyllis McMurtry) was accused of sending a gang to
assault and rob Sasha Germer, and was alleged to have misap-
propriated property.
b. Plaintiff Grady McMurtry was alleged to
have committed slander, misappropriated property, pirated
property, delivered property to the hand of thieves, and
contributed to the death of Sasha Germer.
c. Plaintiff Helen Parsons Smith was alleged
to be a thief.
d. Plaintiff James Wasserman was alleged to
have delivered property to thieves and to have pirated property.
(end of page five)
18. The statements made about the plaintiffs
enumerated in paragraphs 17-a, b, b {SIC ? "c" -probably error in the original typing of the findings---weh} and d were untrue and
constituted libel per se.
19. The plaintiffs enumerated in paragraphs 17-a,
b,c, and d did not establish by sufficient evidence any spe-
cial damages, but are entitled to general damages from defen-
dants in the amount of $10,000 each.
20. The publications of the libels in paragraph
17-a, b, c, and d were done with actual malice by defendants,
with knowledge of their falsity, and with a reckless disregard
for the truth, and those plaintiffs are entitled to puntitive
damages from defendants in the amount of $25,000 each.
21. Neither plaintiffs nor defendants are parties
engaged in the media business, and and not entitled to rights
or defenses attributable thereto.
22. There is not sufficient evidence to establish
that defendants obtained any substantial gross revenue or
profit from their publications, or that plaintiffs lost any
gross revenue or profit, to support an award of damages to
plaintiffs for defendants' use of plaintiffs' names, publica-
tions or symbols.
23. Plaintiff Wasserman was an agent of defendant
Motta for certain purposes in 1976. Plaintiff Wasserman
terminated that agency in 1976, and the termination as ac-
knowledge by defendant Motta. Any cause of action by Motta
for the breach of that agency relationship by Wasserman ac-
crued in 1976.
(end of page six)
24. No property of defendants was converted by
plaintiffs. Even if some personal properties of defendants
were included in the material obtained by plaintiffs from Karl
and Sasha Germer, they were obtained in 1976, and the obtaining
was known to defendants in 1976.
25. Plaintiffs circulated among OTO members a
letter written by defendant Motta to Karl Germer dealing with
certain matters personal to Motta. Motta has not shown by
sufficient evidence that the circulation was a violation of
his right of privacy, or that the circulation caused him any
special or general damages. The circulation was not done with
malice, but in connection with the dispute between plaintiffs
and defendants as to who was the OHO and who rightfully held
the properties of OTO. The circulation occurred, and was
known by defendant Motta to have occurred, more than one year
prior to the filing of the complaint in this action.
26. Unless enjoined, defendants will continue to
claim and use the name "Ordo Templi Orientis" and the initials
"OTO," and will continue to claim that defendant Motta is the
OHO of OTO, and will use plaintiff OTO's names, insignia,
initials, symbols, trademarks and other properties of plain-
tiff OTO to the injury of plaintiff OTO.
CONCLUSIONS OF LAW
1. To the extent that any of the above findings of
fact may be deemed to be conclusions of law, they are incor-
porated by reference herein.
//
(end of page seven)
2. The libelous statements enumerated in paragraphs
17-a, b, c, and d of the finding of fact are liber per se,
and general damages are presumed.
3. The other allegedly libelous statements about
plaintiffs enumerated in the third and fourth causes of action
of plaintiffs' first amended complaint are not actionable
because they are matters of opinion or are religious matters
protected by the First Amendment to the Constitution of the
United States.
4. Any publications by defendants of allegedly
libelous statements about plaintiffs which occurred subsequent
to the filing of the first amended complaint cannot be the
basis for any award of damages to plaintiffs in this action.
5. Plaintiffs are entitled to judgment on their
first amended complaint against defendants as follows:
a. On the first cause of action for unfair
competition regarding the use of the name "Ordo Templi
Orientis," and the initials "OTO", and the insignia and other
properties of OTO.
b. on the second cause of action for infringe-
ment of trademarks owned by plaintiff OTO.
c. On the third and fourth causes of action for
the libels enumerated in paragraphs 17-a, b, c, and d of the
findings of fact.
d. On the fifth cause of action for unfair
competition in the use of the name "Thelema."
//
(end of page eight)
6. By virtue of the decision of the United States
District Court for the District of Maine, United States Dis-
trict Judge Gene Carter, in the action entitled "Motta, et al
v. Samuel Weiser, Inc"., No. 81-0459, defendants are collateral-
ly estopped from asserting certain of their counterclaims
against plaintiffs. Judgment should be entered in favor of
plaintiffs and against defendants on defendants' counterclaims
as follows, both because of the collateral estoppel effect of
that action and because of the findings of fact which are made
above:
a. Defendants do not own the Crowley copy-
rights.
b. Motta is not the OHO of OTO.
c. Defendants' purported registration of copy-
rights are not valid because defendants do not own the proper-
ty purportedly copyrighted.
d. Plaintiffs did not breach any copyrights of defendants, as allege in defendants' first counterclaim.
7. Plaintiffs did not violate defendants' alleged
trademarks regarding the insignia of OTO, as alleged in defen-
dants' second and eighth counterclaims.
8. Plaintiffs did not violate defendants' alleged
trademarks regarding SOTO, as alleged in defendants' third
counterclaim.
9. Defendants' fourth counterclaim is barred by the
statutes of limitations, either by the two year statute of
limitations provided in California Code of Civil Procedure
(end of page nine)
Section 339 or by the three year statute of limitations provided
in California Code of Civil Procedure Section 338; the cause
of action accrued in 1976 and was barred prior to the filing
of the complaint in this action in March 1983.
10. Defendants' fifth counterclaim is barred by the
three year statute of limitations provided in California Code
of civil procedure section 338; the cause of action accrued
in 1976 and was barred prior to the filing of the complaint in
this action in March 1983.
11. Defendants' sixth counterclaim is barred by the
one year statute of limitations provided in California Code of
Civil Procedure section 340; the cause of action had accrued
and was barred prior to the filing of the complaint in this
action in March 1983.
12. Plaintiffs have not waved their statute of
limitations defenses by not specifically asserting them in an
answer to defendants' counterclaims.
13. Plaintiffs did not breach any federal trademark
regarding the name "Ordo Templi Orientis" as alleged in defen-
dants' seventh counterclaim.
14. Plaintiffs did not breach any federal trademark
in the symbol "OTO" as alleged in defendants' eight counter-
claim.
15. Plaintiff OTO is entitled to the exclusive use
of the trademarks and names claimed by defendants in their
counterclaims, except those of SOTO.
//
(end of page 10)
16. Plaintiff Mcmurtry owns the interest in "Magick
Without Tears" assigned to him by Crowley.
17. Plaintiff OTO is entitled to possession and
ownership of: the remainder of the copyrighted material about
OTO, the archives of OTO, and the remainder of the writings of
Crowley.
18. Defendants' purported registration of trade-
marks are invalid and of no legal effect, because defendants
did not and do not own the marks, except those of SOTO.
19. Plaintiffs are entitled to injunctive relief
request in their counterclaim to the counterclaim.
JUDGMENT
Plaintiffs are to submit to this court, within
twenty days of the date below, a proposed form of judgment
incorporating these findings and conclusions. Plaintiffs are
to simultaneously submit the proposed form of judgment to
defendants, and within ten days thereafter defendants are to
advise the court in writing what objections they have to the
proposed form of judgment prepared by plaintiffs. Judgment
will then be entered by the court.
Dated: July 10, 1985.
CHARLES A. LEGGE
UNITED STATES DISTRICT JUDGE
(end of page eleven and of document)
***************************************************************************
NEW DOCUMENT FOLLOWS
***************************************************************************
The following is a transcription from paper copy, and may contain
errors of a typographical nature, copy by Bill Heidrick
transcribed 8/14/87 e.v. Spelling of names has been
corrected without notice in this transcription.
***************************************************************************
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA FILED SEP 10 1985
GRADY McMURTRY, WILLIAM E. HEIDRICK, )
PHYLLIS SECKLER, HELEN PARSONS SMITH, )
JAMES WASSERMAN, individuals, ORDO )
TEMPLI ORIENTIS, a California cor- )
poration, THELEMA PUBLICATIONS, a )
business entity, )
Plaintiffs, )
v. ) No. C-83-5434-CAL
)
SOCIETY ORDO TEMPLI ORIENTIS, a cor- )
poration, THELEMA PUBLISHING COMPANY, )
a corporation, ,MARCELO RAMOS MOTTA, )
Defendants. )
_______________________________________)
JUDGMENT
The action was tried from May 13, 1985, through May
17, 1985, before Charles A. Legge, United States District
Judge, sitting without a jury. The plaintiffs appeared
through their counsel Stuart I. MacKenzie. The defendants
appeared through their counsel Robert E. Mittel. Evidence,
both oral and documentary having been presented by both
parties, the cause having been argued and submitted for
decision, and the court having caused to be made and filed
July 10, 1985, its written Findings of Fact and Conclusions of
Law; now therefore,
Judgment is entered as follows:
1. In favor of plaintiffs Phyllis Seckler, Grady
McMurtry, Helen Parsons Smith, and James Wasserman,
individually and severally, and against defendants Marcelo
Ramos Motta (hereinafter "Motta") and Society Ordo Templi
(end of page one)
Orientis (hereinafter "SOTO"), jointly and severally, on the
third cause of action of plaintiffs' complaint in the amounts
of $10,000 general damages and $25,000 puntitive damages for
each such plaintiff.
2. In favor of defendants Motta and SOTO and
against plaintiff William E. Heidrick on the third cause of
action.
3. Declaring that:
(a) On the first cause of action of plaintiffs'
complaint, defendants engaged in unfair competition regarding
the use of the name "Ordo Templi Orientis," the initials
"OTO," and the insignia and other properties of plaintiff Ordo
Templi Orientis (hereinafter "OTO").
(b) On the second cause of action of
plaintiffs' complaint, defendants infringed trademarks owned
by plaintiff OTO.
(c) On the fifth cause of action of plaintiffs'
complaint, defendants unfairly competed in the use of the name
"Thelema."
(d) Defendants do not own or have the right to
use any of the copyrights of publications of Aleister Crowley.
(e) Defendant Motta is not the designated
secular Outer Head of plaintiff OTO, and has not been
designated by any secular authority as Outer Head of Ordo
Templi Orientis.
(f) Defendants' purported registration of
copyrights of material pertaining to Ordo Templi Orientis are
(end of page two)
invalid because defendants did not and do not own the material
purportedly copyrighted.
(g) Plaintiffs did not breach any copyrights of
defendants.
(h) Plaintiffs did not violate defendants'
alleged trademarks regarding the insignia of OTO.
(i) Plaintiffs did not violate defendants'
alleged trademarks regarding SOTO.
(j) Plaintiffs did not violate any federal
trademark regarding the name "Ordo Templi Orientis" or the
symbol "OTO."
(k) Plaintiff OTO is entitled to the exclusive
use of the trademarks and names claimed by defendants, except
that defendant SOTO has the continued right to use the name
"Society Ordo Templi Orientis" and the initials "SOTO".
(l) Plaintiff Grady McMurtry owns the interest
in "Magick Without Tears" assigned to him by Aleister Crowley.
(m) Plaintiff OTO is entitled to the possession
and ownership of (i) all other materials copyrighted in the
United States about Ordo Templi Orientis, (ii) the archives of
OTO, and (iii) all other writings by Aleister Crowley which
are not in the public domain.
(n) Defendants' purported registration of
trademarks are invalid, because defendants did not and do not
own the marks, except those of SOTO.
4. Defendants Motta and SOTO, and agents, servants,
employees, representatives, successors and assigns acting for
(end of page three)
them, or in active concert or participation with them, are
permanently enjoined and restrained from:
(a) Using, registering, publishing,
distributing, or infringing (i) the copyrights, trademarks,
trade names, service marks, and service names held by
plaintiff OTO; (ii) the name "Thelema" when used as the
publisher or distributor of written material; (iii) all other
titles of works used to date by plaintiff OTO in various
publications; (iv) all writings and publications of Aleister
Crowley which are not in the public domain; (v) the initials
"OTO;" and (vi) all titles of honor, emblems, insignia,
registers, symbols, or any other property or articles of
plaintiff OTO.
(b) Representing (i) that Motta has been
designated by any secular authority as Outer head of Ordo
Templi Orientis, or (ii) that defendant SOTO is authorized by
any secular authority as the successor of the organization,
beliefs, and practices established and developed by Aleister
Crowley and Ordo Templi Orientis.
5. All registrations undertaken by defendants,
whether directly, indirectly, or in their name, of any of the
matters adjudged herein to be the property of plaintiffs,
whether purportedly registered as a copyright, trademark,
service mark, trade name, service name, or otherwise, are
invalid, and at plaintiff OTO's election, are to be rescinded
and canceled by the appropriate governmental registration
office, whether the United States Patent and Trademark Office,
the United States Copyright Office, or other.
(end of page four)
6. Defendants take nothing on their
cross-complaint.
7. Plaintiffs are entitled to their costs of suit
in the amount of $1,234,21.
Dated: September 10, 1985.
CHARLES A. LEGGE
UNITED STATES DISTRICT JUDGE
(end of page five and of document)
***************************************************************************
NEW DOCUMENT FOLLOWS
***************************************************************************
The following is a transcription from paper copy, and may contain
errors of a typographical nature, copy by Bill Heidrick
Received from S.I.MacKenzie 4/10/87 e.v., IIIrd Day of Liber AL
***************************************************************************
Filed APR-6 1987
USDC NDC
McMurtry vs. SOTO
No. C-83-54-CAL
Additional Findings of Fact and Conclusions of Law.
Additional Findings of Fact.
The Court of Appeals remanded the case to this court
to "make additional findings specifying in detail the factual
basis for its ultimate findings of fact that Plaintiff OTO is,
and Defendant OTO is not, the continuation of the original OTO
and its findings that McMurtry is, and Motta is not, the OHO."
That remand pertains primarily to findings of fact 8, 9, 15, and 16.
This court believes that its original findings of
fact meet the standards of adequacy defined by Fed.R.Civ.P.
52(a) and by this Circuit in "Nicholson v. Board of Education",
682 F.2d 858 (9th Cir. 1985). Nevertheless,
since the Court of Appeals has requested additional findings,
the court makes the following additional findings of fact on
the issues defined by the Court of Appeals:
27. Defendant Motta was not a credible witness.
His testimony was incomplete, evasive, and contradictory, and
(end page one)
was impeached in important particulars. Motta admitted to
lying under oath in the action referred to in Conclusion of
Law 6. There was no credible evidence that defendant Motta
was initiated into OTO and became a member thereof. Motta has
made inconsistent prior statements as to whether he does or
does not claim to be OHO
28. Plaintiffs' witnesses McMurtry, Parsons-Smith,
Seckler, Heidrick, and Wasserman gave credible testimony
regarding the transfers of property, and the history,
publications, and organizational structure of OTO
29. Plaintiff OTO has made actual use of the names,
initials, insignia, copyrights, and trademarks at issue.
30. Plaintiff OTO has allowed third parties to publish
material originally protected by the copyrights of
Aleister McCrowley (SIC. should be "Crowley" --by WEH) if plaintiffs' role in the publication is
acknowledged by those third parties. The third parties have
done so.
31. Plaintiffs have had actual and lawful
possession of the writings and archives of Crowley and Germer.
32. The California Agape Lodge was the only OTO
lodge existing in the United States at the time Crowley died.
That lodge was a direct predecessor of plaintiff OTO.
33. There was no credible evidence that defendant
SOTO ever received a charter from OTO.
34. There was no credible evidence that defendant
SOTO is a membership organization, maintains records, has an
established set of procedures, conducts regular meetings,
(end page two)
conducts financial transactions, or initiates or promotes
members.
35. Motta has been the sole member of SOTO, and
SOTO now has no other members, in the United States.
36. Plaintiff McMurtry has been acting as the OHO
of OTO for an indefinite by significant number of years.
37. Several documents evidenced a close mentor
relationship between Crowley and McMurtry, and that
responsibilities and authorities were vested in McMurtry by
Crowley and by Germer.
38. One document evidenced the intent of Crowley
that McMurtry be OHO.
39. There was a subsequent dispute between Germer
and McMurtry, but no credible evidence that Germer intended to
change Crowley's intended succession of OHO.
40. Germer's widow acknowledged McMurtry as the
OHO. Numerous members of OTO acknowledged their recognition
of McMurtry as the OHO.
Additional Conclusions of Law
The Court of Appeals also remanded the case to this
court to make "conclusions of law explaining (this) court's
reasons as to why its adjudication of the issues in this case
does not transgress First Amendment prohibitions against
resolving church property disputes by adjudicating questions
of church doctrine, practice, organization or administration."
The court complies with that remand by making the following
additional conclusions of law:
(end of page 3)
20. Defendants did not assert First Amendment
contentions, except as follows:
(a) Defendants asserted the First Amendment as
a defense to certain of plaintiffs' causes of action for
libel. This court respected that defense in Finding of Fact
No. 17: "Certain of the statements were matters of opinion,
or were matters pertaining to religious beliefs, and hence are
protected under the First Amendment." And in Conclusion of
Law No. 3: "The other allegedly libelous statements about
plaintiffs enumerated in the third and fourth causes of action
of plaintiffs' first amended complaint are not actionable
because they are matters of opinion or are religious matters
protected by the First Amendment to the Constitution of the
United States."
(b) In defendants' Objections to Proposed
Judgment and Costs, filed on August 12, 1985, after entry of
the findings of fact and conclusions of law.
(c) In defendants' Motion to Alter, Amend, and
Vacate the court's opinion and for a new trial. However, that
motion was not filed until September 26, 1985, outside of the
time provisions of Rule 59(b) of the Federal Rules of Civil
Procedure.
21. No other First Amendment defenses were asserted
by defendants before or during trial. (a) In their first
amended answer, motion to dismiss and counterclaim, defendants
sought adjudication of the property rights which were put in
issue by plaintiffs. (b) In the joint pretrial statement,
(end of page 4)
both plaintiffs and defendants stated that the case was
primarily about which of two groups were the owners of
intellectual and tangible personal property; defendants sought
ownership of the property and sought declaratory and
injunctive relief setting forth its ownership rights. (c)
Although the court does not have a trial transcript, the
court's notes indicate that defendants did not assert the
First Amendment during trial, but continued to assert their
alleged rights to the properties in question. (d) Defendant's
Proposed Findings of Fact stated that OTO is "primarily the
administrative and material branch" of the philosophical and
religious system.
22. If defendant's First Amendment claim now being
made on appeal constitutes an affirmative defense under Rule
8(c) of the Federal Rules of Civil Procedure, that defense has
been waived because it was not asserted in the pleadings or at
trial.
23. However, if defendant's First Amendment claim
now being made on appeal pertains to the jurisdiction of this
court which is not waived by not asserting it at or before
trial, the following additional conclusions of law are
relevant.
24. The matters at issue primarily involved secular
libel, and disputes over the ownership of and rights to
property, to wit: copyrights, trademarks, service marks,
intellectual property, tangible personal property, writings,
(end of page 5)
publications of Aleister Crowley, names, insignia and
archives.
25. The resolution of those disputes involved the
application of neutral principles of the law of property,
contract, intestate succession, gift, express and implied
trust, bequest, assignment, and libel.
26. Documents regarding religious dogma and
theology were not and did not need to be reviewed to resolve
those disputes.
27. The resolution of those disputes did not
involve resolving disputes of underlying religious doctrine or
practices.
28. No examination of religious precepts was done,
and none was necessary, to resolve the disputes.
29. Resolution of the disputes did not depend upon
resolving any religious controversies or the application of
any religious law.
30. The damages claimed by and awarded to
plaintiffs primarily concerned issues of secular libel (see
Findings of Fact 17, 18, 19, 20, and 21 and Conclusions of Law
2 and 4).
Dated: April 6, 1987.
Charles A. Legge
United States District Judge
(end of page 6, and of document
This is the document of memorandum from the 9th Circuit USA Court of Appeals.
The document was filed on Jun 4, 1987.
Please do not publish without a legal opinion on the notations against
publication. A paraphrase or news statement is probably ok, but check!
Entered by Bill Heidrick, GTG, OTO, in electronic form for reference only.
6/7/87 e.v.
****************************************************************************
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRADY McMURTRY, et all., )
) No. 85-2897
Plaintiffs-Appellees, ) D.C. No. C-83-5434-CAL
)
v. ) M E M O R A N D U M*
)
SOCIETY ORDO TEMPLI ORIENTIS, )
et al., )
)
Defendants-Appellants. )
_________________________________)
Appeal from the United States District Court
for the Northern District of California
Charles A. Legge, District Judge, Presiding
Argued December 11, 1986, San Francisco, California
submitted April 13, 1987
Before: NORRIS, BEEZER, and BRUNETTI, Circuit Judges
It is clear that the critical issue in this case is
whether plaintiff Ordo Templi Orientis or defendant Society Ordo
Templi Orientis (SOTO) is a continuation of the original Ordo
Templi Orientis (OTO) and thus entitled to its property. It is
also clear that this issue turns largely on whether McMurtry or
Motta succeeded Mr. Germer as the Outer Head of the Order (OHO)
and on whether the issues of continuation and succession can be
________________________
* This disposition is not appropriate for publication and
may not be cited to or by the courts of this circuit except
as provided by 9th Cir. Rule 21.
[end of page 1]
decided without impermissibly adjudicating questions of religious
doctrine, practice, organization, or administration.
We hold that ample secular evidence supports the
district court's findings that plaintiff OTO is, and SOTO is not,
the continuation of the original OTO, and its findings that
McMurtry is, and Motta is not, the OHO. As is evident from the
district court's additional findings, the district court did not
base these findings on its adjudication of religious questions.
Rather it based its findings on secular indicia about the relative
credibility of the testimony before it, on the lack of evidence
that Motta or SOTO ever had any official connection to OTO, on the
ample evidence that McMurtry and plaintiff OTO have longstanding
and established connections to OTO, on the fact that SOTO appears
to be a nonfunctioning organization with only one member -- Motta
-- whereas plaintiff OTO has numerous members who recognize
McMurtry as the OHO, on the fact that plaintiff OTO has actually
used and possessed the intangible and tangible property at issue,
and on evidence showing that previous OHOs worked closely with
McMurtry and that Mr. Germer intended McMurtry to be his
successor. Relying on this evidence to adjudicate this dispute
does not violate the First Amendment.
It is undisputed that the property at issue belonged to
the original OTO. As the continuation of the original OTO,
plaintiff OTO legally owns the names, initials, insignia,
[end of page 2]
trademarks, tradenames, copyrights, writings, archives, and
library that belonged to the original OTO. McMurtry's death does
not change this fact because plaintiff OTO continues to hold the
property in its corporate capacity. The district court thus
appropriately resolved all the non-libel claims and counterclaims.
Since the property belonged to plaintiff OTO, defendants
cannot assert truth as a defense to the claim that they libeled
plaintiffs by accusing the plaintiffs of various property
offenses. We thus also affirm the district court's conclusion
that defendants libeled certain plaintiffs by accusing them of
these property offenses as well as by accusing them of assaulting
and robbing Sasha Germer and contributing to her death. We find
no error in the district court's application of collateral
estoppel against the defendants but not against the plaintiffs
since plaintiffs were not a party to the previous proceeding; any
error in applying collateral estoppel would be harmless anyway
since the district court allowed both sides to present evidence.
None of the appellants' other arguments has any merit.
AFFIRMED.
[end of page 3 and of document]
****************************************************************************
Note from Bill Heidrick: Again, this is a Memorandum, and there are notices
barring publication. On the chance that this refers to general publication
of this information, do not print this without a legal opinion in writing!
Presumably the Court of Appeals will issue a more formal document in
the near future.
****************************************************************************
NEW DOCUMENT FOLLOWS
****************************************************************************
This is the document of ORDER from the 9th Circuit USA Court of Appeals.
The document was filed on Aug 4, 1987.
Please do not publish without a legal opinion on the notations against
publication. A paraphrase or news statement is probably ok, but check!
Entered by Bill Heidrick, GTG, OTO, in electronic form for reference only.
8/14/87 e.v.
****************************************************************************
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRADY McMURTRY, et all., )
) No. 85-2897
Plaintiffs-Appellees, ) D.C. No. 83-5434-CAL
)
v. ) O R D E R
)
SOCIETY ORDO TEMPLI ORIENTIS, )
et al., )
)
Defendants-Appellants. )
_________________________________)
Before: NORRIS, BEEZER, and BRUNETTI, Circuit Judges
The panel, as constituted above, has unanimously voted
to deny the petition for rehearing and to reject the suggestion
for a rehearing en banc.
The full court has been advised of the suggestion for en
banc rehearing and no judge of thecourt has requested a vote on
the suggestion for rehearing en banc. Fed. R. App. P. 35(b).
The petition for rehearing is DENIED, and the suggestion
for a rehearing en banc is REJECTED.
**************************************************************************
(end of page one and of document)
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