U.S. v. Gering

Citation716 F.2d 615
Decision Date19 September 1983
Docket NumberNo. 82-3072,82-3072
Parties14 Fed. R. Evid. Serv. 348 UNITED STATES of America, Plaintiff-Appellee, v. Howard M. GERING, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Harry J. McCarthy, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Charles K. Wiggins, Edwards & Barbieri, Seattle, Wash., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before KILKENNY, KENNEDY, and SKOPIL, Circuit Judges.

SKOPIL, Circuit Judge:

Gering appeals his conviction of twenty-four counts of mail fraud, 18 U.S.C. Sec. 1341, and from the orders for restitution and costs of prosecution. He argues: (1) the mail cover violated his first amendment rights; (2) testimony of three witnesses was erroneously admitted; (3) jury instruction 17 impermissibly shifted the burden of proof; (4) the amount of restitution ordered was impermissible under 18 U.S.C. Sec. 3651; and (5) costs of prosecution cannot be taxed in addition to maximum fines. We affirm Gering's conviction and the order to pay costs of prosecution. We reverse the order for restitution.

FACTS AND PROCEEDINGS BELOW

Howard M. Gering is an ordained minister and pastor of the Monroe Bethel Assembly in Monroe, Washington. Gering and his wife served as missionaries to the Pentecostal Church in Indonesia from 1952 through 1966. Gering's work in Indonesia included publication and distribution of religious books and pamphlets. The publication of some materials was financed through donations and distributed free of charge. Monroe Bethel Assembly financed the publication of other books and pamphlets which were sold. Gering testified at trial that the receipts from sales of books belonging to Monroe Bethel Assembly were set aside in a reserve fund which contained over $300,000 by the time the Gerings left Indonesia in 1966.

When Gering returned to the United States in 1966, he established a sponsorship program for needy children and missionaries under the name of Evangelica Scripture Mission (ESM) as an arm of the Monroe Bethel Assembly. Gering attracted sponsors and solicited donations through the mail and by advertising in religious magazines. Sponsors sent payments to ESM with the understanding that the payments Gering was indicted for mail fraud for the solicitation and diversion to other uses of the money donated to the sponsorship program. The indictment charged a scheme to obtain money by false representations with respect to several aspects of the sponsorship program.

were forwarded to a particular child or missionary.

In defense, Gering attempted to establish that all donations to the sponsorship program were in fact distributed dollar for dollar from the reserve fund accumulated and cached in Indonesia before he left. Gering denied intentionally misrepresenting any aspect of the sponsorship program and attempted to establish that he believed in good faith that any representations made were true.

The jury convicted Gering on all 24 counts. The district court sentenced him to prison on Count One and to probation on the remaining 23 counts. Gering was fined the maximum of $1,000 on each of 23 counts and ordered to pay restitution in the amount of $22,757.67 to victims named in the indictment. He was also ordered to pay costs of prosecution in the amount of $21,527.23.

ISSUES

1. Did the mail cover violate Gering's first amendment religious and associational rights?

2. Did the district court abuse its discretion in admitting certain testimony of Ray Johnson, Constance Hicks or Mrs. Gering?

3. Did jury instruction 17 impermissibly shift the burden of proof as to Gering's defense of good faith?

4. Was the restitution order impermissible because the amount exceeded that attributable to the offenses for which he was convicted?

5. Was the imposition of costs of prosecution in addition to maximum fines erroneous?

A. MAIL COVER

During its investigation of Gering, the government conducted two mail covers, as authorized by 39 C.F.R. Sec. 233.3(d)(2) (1982). The mail covers provided a record of the information on the outside of all mail received by Gering at his home, the church, and ESM for the applicable periods. See 39 C.F.R. Sec. 233.2(c)(1) (1982). From this information, the government learned the identities of many contributors to the sponsorship program, some of whom testified against Gering or were victims named in the indictment.

Gering moved to suppress all information from the mail covers on the ground they violated Postal Service regulations and Gering's first amendment religious exercise and associational rights. The district court denied the first motion to suppress, finding a de minimus violation of the regulations in the extension of one mail cover four days past its 30-day limit. On the second motion, the district court found no first amendment violation, stating: "The use of the mail cover in question was a minimally-intrusive interference with defendant's privacy and religious activities. If there was any impingement upon defendant's religious activities, that impingement was warranted."

On appeal Gering argues that the mail cover requests were inadequate under the governing regulations because they failed to provide the Postal Inspector with reason to believe a crime had been committed. Gering also argues that the mail cover abridged his first amendment religious rights and the violation was not outweighed by compelling governmental interests as required under such cases as NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). We reject both arguments.

1. Mail Cover Requests.

The postal regulations provide in part:

The Chief Postal Inspector, or his designee, may order mail covers under the following circumstances:

* * *

* * *

(ii) When written request is received from any law enforcement agency wherein the requesting authority stipulates and specifies the reasonable grounds that exist which demonstrate the mail cover is necessary to ... (C) obtain information regarding the commission or attempted commission of a crime.

39 C.F.R. Sec. 233.3(d)(2) (1982).

Gering argues the requests here failed to meet these requirements because they did not give sufficient facts to show a crime had been committed or attempted. The government argues that this issue was not raised below and there is no plain error. We agree with the government.

The sufficiency of the mail cover requests under the regulations was not briefed by the parties on the motions to suppress nor addressed by the district court. Accordingly, we find the issue was not raised below. 1 The requests here are practically indistinguishable from that approved by us in United States v. Choate, 576 F.2d 165, 169 (9th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978) (Choate II ). There is no plain error. Fed.R.Crim.P. 52(b).

2. Religious Freedom.

Gering argues that a mail cover on a minister, a church or its related enterprises is per se violative of the first amendment. He argues that the mere potential for abridgement of religious freedom should invalidate the mail cover, and it is irrelevant that the information was used only for permissible law enforcement purposes or that the subject of the mail cover did not know about it.

We have found no case, nor have we been directed to one, directly ruling on a mail cover on a minister or church challenged under the free exercise clause of the first amendment. The general principles regarding mail covers, however, persuade us to reject Gering's per se rule. 2

In United States v. Choate, 576 F.2d 165 (9th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978) (Choate II ), aff'd, 619 F.2d 21 (9th Cir.), cert. denied, 449 U.S. 951, 101 S.Ct. 354, 66 L.Ed.2d 214 (1980), we sustained a mail cover against first, fourth and ninth amendment challenges. While Choate II did not directly implicate the free exercise clause, the rationale is instructive. In finding no first amendment rights were violated, we stated:

As seen, the only information being gleaned by the Bureau of Customs was material on the outside of Choate's incoming mail and packages. Such material certainly would not abridge Choate's freedom of speech. Indeed, like any other reasonable citizen, he could expect no privacy as to the outside of his incoming mail, and any "chill" on the exercise of First Amendment rights resulting from that "lack of privacy" is not significant enough to be constitutionally impermissible when, as here, the challenged activity [a mail cover] does not concern the substance of a communication and fits within regulatory restrictions.

Choate II, 576 F.2d at 181.

We also found the mail cover substantially less intrusive than other law enforcement practices upheld by the Supreme Court. 576 F.2d at 182. Finally, we noted that the record showed the information gleaned from the mail cover was used only for legitimate government law enforcement purposes and would not allow the government to "build up such a complete picture of the subject that it could be used to invade such intimately personal rights as protected by Griswold v. Connecticut [379 U.S. 926, 85 S.Ct. 328, 13 L.Ed.2d 339] ...." Id. 183.

The principles from Choate II require a showing that a mail cover had some particular detrimental effect on religious exercise and association or was used for impermissible purposes. Id. The mere potential for abridgement of first amendment rights in a mail cover on a minister or a church is insufficient to show a first amendment violation. Cf. Scott v. Rosenberg, 702 F.2d 1263, 1271 (9th Cir.1983) (merely conclusory allegations insufficient).

We hold that this mail cover, as authorized by the regulations and otherwise permissible under the fourth amendment, see Choate II, 576 F.2d at 174-75, did not violate Gering's first amendment rights per se. Since Gering has failed to...

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