U.S. v. Bakker

• Citation: 925 F.2d 728
• Decision Date: 11 February 1991
• Docket Number: No. 89-5687,89-5687
• Parties: , 32 Fed. R. Evid. Serv. 303 UNITED STATES of America, Plaintiff-Appellee, v. James O. BAKKER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 728

925 F.2d 728

59 USLW 2558, 32 Fed. R. Evid. Serv. 303

UNITED STATES of America, Plaintiff-Appellee, v. James O. BAKKER, Defendant-Appellant.

No. 89-5687.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 30, 1990.

Decided Feb. 11, 1991.

Don Ervin, argued, Houston, Tex., Alan M. Dershowitz, argued, Cambridge, Mass., Brian William Wice, argued, Houston, Tex. (Harold Bender, Bender & Matus, Charlotte, N.C., Nathan Dershowitz, Cambridge, Mass., on brief), for defendant-appellant.

Deborah M. Smith, argued, U.S. Dept. of Justice, Washington, D.C. (Christopher L. Varner, Sara Criscitelli, U.S. Dept. of Justice, Washington, D.C., Thomas J. Ashcraft, U.S. Atty., Jerry W. Miller, Asst. U.S. Atty., Charlotte, N.C., on brief), for plaintiff-appellee.

Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

WILKINSON, Circuit Judge:

This appeal stems from the trial and sentencing of a well-known televangelist, James O. Bakker. Bakker raises numerous challenges to his conviction for fraud and conspiracy. We affirm his conviction. Appellant also challenges his sentence on the grounds that the trial judge's personal religious beliefs tainted the sentencing and that the trial court erred by rejecting Bakker's attempt to classify his crimes as straddle crimes to be sentenced under the United States Sentencing Guidelines. We hold that the trial court correctly determined that Bakker's crimes did not straddle the effective date of the Guidelines and were thus to be sentenced under pre-Guidelines law. We agree with appellant, however, that remarks made by the trial court compromised the sentencing proceeding and thus deprived Bakker of due process. We therefore vacate Bakker's sentence and remand for resentencing in accordance with instructions set forth herein.

I.

In 1974, James Bakker formed a corporation known as the PTL. PTL stands for "Praise the Lord" and "People that Love." The PTL's activities soon expanded from their initial focus on televised religious broadcasting. For example, in the late 1970s PTL began construction on "Heritage USA," described by PTL officials as a Christian retreat center for families. The concept of the center became increasingly ambitious. In 1983, Bakker announced plans to enlarge the center by adding a vacation park, "Heritage Village," that would include the 500-room Grand Hotel. Between 1984 and 1986, appellant announced further proposals to expand the Village by constructing the Towers Hotel, 50 bunkhouses, and several additional facilities.

Bakker planned to finance these projects by selling lifetime partnerships. He offered eleven different partnership programs ranging in cost from $500 to $10,000. Eight of the partnerships promised benefits that included annual lodging in one of the Heritage Village facilities. In January 1984, appellant began using the mail to solicit lifetime partners. Also, from February 1984 through May 1987, Bakker used broadcasts carried on the PTL Television Network and various commercial affiliates to solicit lifetime partners. Many of these partners drew on meager incomes to purchase Heritage Village lodging benefits. Appellant raised at least $158 million through the sale of approximately 153,000 partnerships with lodging benefits.

Bakker promised television viewers that he would limit the sale of partnerships to ensure that each partner would be able to use the facilities annually. Appellant, however, oversold the partnerships. He promised, for instance, to limit the sale of Grand Hotel partnerships to 25,000 but actually sold 66,683. In addition, Bakker used relatively few of the funds solicited from the partners to construct promised facilities. In fact, of the proposed Heritage Village facilities, only the Grand Hotel and one bunkhouse were actually completed. Instead, Bakker used partnership funds to pay operating expenses of the PTL and to support a lavish lifestyle. This extravagant living included gold-plated fixtures and a $570 shower curtain in his bathroom, transportation in private jets and limousines, an air-conditioned treehouse for his children and an air-conditioned doghouse for his pets. This combination of overselling partnerships and diverting partnership proceeds meant that the overwhelming majority of the partners never received the lodging benefits Bakker promised them.

In response to these activities, a grand jury on December 5, 1988 indicted Bakker on eight counts of mail fraud in violation of 18 U.S.C. Sec. 1341, fifteen counts of wire fraud in violation of 18 U.S.C. Sec. 1343, and one count of conspiracy in violation of 18 U.S.C. Sec. 371. Bakker's trial began on August 28, 1989 and lasted five weeks. The jury found him guilty on all 24 counts. The court sentenced him to 45 years imprisonment and fined him $500,000. Bakker now appeals his conviction and sentence.

II.

Appellant raises a host of challenges to his conviction. First, Bakker contends that the trial court failed to ensure that an impartial jury, untainted by publicity, heard his case. Second, he argues that the court, by refusing to grant a continuance during the trial, denied him the effective assistance of counsel. Third, Bakker challenges two evidentiary rulings made at trial. Finally, he contends that the court incorrectly instructed the jury with respect to his defense of good faith. We shall address these contentions in turn.

A.

Bakker contends principally that the media coverage of his business dealings and legal proceedings operated to violate his Sixth Amendment right to an impartial jury. Bakker characterizes the publicity surrounding his case as "venomous," "recent, pervasive and widespread." For its part, the government contends the media coverage of Bakker's activities was largely "dispassionate and factual."

1.

Bakker twice moved for a change of venue to alleviate the alleged prejudicial effects of the publicity surrounding his case. We discern no abuse of discretion, however, in the various denials of his motions.

Motions for a change of venue call for a two-step analysis. See, e.g., United States v. Jones, 542 F.2d 186, 193 (4th Cir.1976). As a first step, a trial court must address whether the publicity is so inherently prejudicial that trial proceedings must be presumed to be tainted. In that case, a motion for a change of venue should be granted before jury selection begins. This court has cautioned, however, that "[o]nly in extreme circumstances may prejudice be presumed from the existence of pretrial publicity itself." Wells v. Murray, 831 F.2d 468, 472 (4th Cir.1987). Instead, a trial court customarily should take the second step of conducting a voir dire of prospective jurors to determine if actual prejudice exists. Wansley v. Slayton, 487 F.2d 90, 92-93 (4th Cir.1973). Only where voir dire reveals that an impartial jury cannot be impanelled would a change of venue be justified.

We are unpersuaded by Bakker's argument that prejudice must simply be presumed in his case. Sheer volume of publicity alone does not deny a defendant a fair trial. See, e.g. Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977). The magistrate judge reviewed the evidence and denied Bakker's first change of venue motion because, among other reasons, he concluded "that much of the publicity is simply not inflammatory or prejudicial." The trial court, in ruling on Bakker's second change of venue motion, examined news coverage relating to Bakker in 1989. This coverage concerned primarily the recent trial of his former assistants (James and David Taggart) or the plea agreement entered into by his co-defendant (Richard Dortch), matters tangentially related to Bakker's case. The court concluded that the vast majority of the evidence reflected unemotional, factual reports of legal proceedings with no prejudicial impact on Bakker. See, e.g., Murphy v. Florida, 421 U.S. 794, 801 n. 4, 95 S.Ct. 2031, 2036 n. 4, 44 L.Ed.2d 589 (1975) (important to distinguish between factual and inflammatory publicity).

Upon reviewing the evidence, the magistrate judge also concluded that the bulk of media attention with respect to Bakker occurred in 1987, the time when he resigned from the PTL and a "holy war" erupted over which televangelist would control the organization. The recency of alleged prejudicial publicity is important because "[o]bviously where considerable time has elapsed since publication, the probability or likelihood of impact is appreciably lessened." Wansley, 487 F.2d at 93. See, e.g., Patton v. Yount, 467 U.S. 1025, 1032-33, 104 S.Ct. 2885, 2889-90, 81 L.Ed.2d 847 (1984) (noting that the passage of time diminishes the effects of potentially prejudicial publicity). After 1987, the level of publicity about Bakker had subsided. In fact, at the hearing, he could point to only a handful of instances in 1989 where media coverage could arguably be characterized as inflammatory. And of these few items, most occurred in January of 1989, fully seven months before trial was to begin. Under these conditions, we believe the court properly concluded that the passage of time diminished the impact of publicity upon a jury pool in the court's district.

In deciding whether to presume prejudice based on pre-trial publicity, a court can consider the source of that publicity. The source of much of the publicity in this case was Bakker himself who, both before and after his indictment, engaged in a calculated media campaign to deny any wrongdoing and regain control of the PTL following his resignation in March 1987. For example, Bakker appeared on a May 1987 Nightline interview during which he emphasized his desire to return to his ministry. This national program attracted an audience of approximately thirteen million viewers, its largest audience to that time. After Bakker's indictment, he appeared on the nationally syndicated Sally Jesse Raphael Show, and appeared on his own television show asking for money...