U.S. v. Ham
| Decision Date | 21 July 1993 |
| Docket Number | Nos. 91-5350,91-5430 and 91-5870,s. 91-5350 |
| Citation | 998 F.2d 1247 |
| Parties | 37 Fed. R. Evid. Serv. 360 UNITED STATES of America, Plaintiff-Appellee, v. Keith Gordon HAM, a/k/a Number One, a/k/a K Swami, a/k/a Kirtanananda, a/k/a Srila Bhaktipada, a/k/a/ Kirtanananda Swami Bhaktipada, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven FITZPATRICK, a/k/a Sundarakara, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Terry SHELDON, a/k/a Mr. Scam, a/k/a Tapahpunja, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Alan M. Dershowitz, Cambridge, MA, argued (Nathan Z. Dershowitz, Victoria B. Eiger, Amy Adelson, Dershowitz & Eiger, P.C., New York City, on brief), for defendant-appellant Ham.
Greta Conway Van Susteren, Coale, Allen & Van Susteren, Washington, DC, argued (Claudia Callaway, on brief), for defendant-appellant Sheldon.
Richard Allan Dezio, Alexandria, VA, argued, for defendant-appellant Fitzpatrick.
Michael D. Stein, Asst. U.S. Atty., Wheeling, WV, argued (William A. Kolibash, U.S. Atty., Wheeling WV, Nina Goodman, U.S. Dept. of Justice, Washington, DC, on brief), for plaintiff-appellee.
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
Appellants Keith Gordon Ham, Steven Fitzpatrick and Terry Sheldon were convicted below for RICO and mail fraud violations. The three are members of the Hare Krishna religion and allegedly engaged in criminal activity in order to promote and preserve the New Vrindaban Krishna community in which they lived. On appeal, Appellants contend inter alia that the evidence was not sufficient to support the jury verdict and that evidence admitted at trial of homosexuality, child molestation and abuse, and subordination of women within the community unduly prejudiced the jury. We agree that certain evidence admitted at trial was unduly prejudicial and vacate the convictions of Ham and Sheldon. We reverse the conviction of Fitzpatrick because the evidence against him was insufficient.
We briefly summarize the facts relevant to our disposition of this appeal. In 1968 Ham founded, along with Howard Wheeler, a Hare Krishna community in West Virginia called New Vrindaban. Ham changed his name to Kirtanananda Swami (hereinafter referred to as Swami) and became the ruler of the community. Members of the community testified that Swami had control over all aspects of community life, including financial decisions. Over the years the community increased its membership such that in the 1980's it counted over 500 devotees, owned more than 3,000 acres of land and brought in approximate profits from charitable solicitations of $10 to $12 million during a five year period.
New Vrindaban received most of its support from contributions solicited by its members. In the Krishna religion, soliciting donations, or "sankirtan," is a ritual. Traditionally, devotees distributed religious publications and then solicited donations. However, due to public disapprobation of the religion, in 1973 devotees of New Vrindaban began dressing in street clothes and distributing bumper stickers or other non-religious items. Many of these items contained counterfeit copyrighted images, such as popular cartoon characters or sports team logos. Devotees would also sometimes wear false identification tags indicating that they were soliciting on behalf of a particular charity.
Appellant Sheldon, along with Dennis Gorrick, directed the sankirtan efforts of the New Vrindaban community from 1973 until around 1977 or 1978. Sheldon was credited with the ideas of selling counterfeit bumper stickers and wearing false identification tags. Sheldon then left New Vrindaban to become president of a Krishna temple in Cleveland, Ohio, and Gorrick took charge of sankirtan at New Vrindaban. Gorrick occasionally mailed fund-raising materials to devotees remaining on the road and also received sankirtan money from them by mail. Swami apparently acted as general manager of sankirtan, encouraging (and allegedly coercing) devotees to bring in money and then accounting for the profits as reported to him by Gorrick.
New Vrindaban owned a print shop in which it printed bumper stickers and other items used in sankirtan. Appellant Fitzpatrick supervised the print shop from 1981 through 1986. Although Fitzpatrick did not decide what was to be printed, he did supervise all job orders from Gorrick. During Fitzpatrick's tenure, the shop printed counterfeit bumper stickers containing copyrighted images. The shop also printed false identification tags used by the devotees in solicitations. Arthur Villa, president of New Vrindaban, and Howard Fawley, comptroller, warned Swami of the illegality of selling counterfeit copyrighted paraphernalia at several board meetings. Although there was evidence that Fitzpatrick occasionally attended board meetings, no evidence linked him to the particular meetings at which the counterfeit goods were discussed.
Several other incidents concerning members or former members of the New Vrindaban community are related to this case. First, in 1979, Swami concealed a nine year old boy named Devin Wheeler from the County Sheriff when the Sheriff attempted to take custody of the boy under a court order. Devin's mother had left the New Vrindaban community and, fearing sexual abuse of the child, obtained a court order to have the child temporarily removed from the community to undergo a medical examination. Devin's father, who still lived in the community, had permanent custody.
Next, in the early 1980's, community comptroller Howard Fawley devised a scheme to obtain lower insurance rates on the community's vehicles. Due to a high accident rate, community vehicles could only be insured through Lloyd's of London at very high premiums. Fawley arranged to transfer apparent ownership of the vehicles from the community to individual devotees and then insure the vehicles under less expensive personal policies. The devotees did not actually own the vehicles; the vehicles remained under the control of the community pursuant to a power of attorney executed by each devotee.
The next incident involved the murder of devotee and community member Charles St. Denis on June 10, 1983. When community member Daniel Reid learned that St. Denis had raped Reid's wife, Reid decided to kill St. Denis. Before attempting to murder St. Denis, Reid consulted Swami. Swami instructed Reid that the killing was acceptable under Krishna scriptures, but that such action violated secular laws and that Reid might be caught and punished. Swami then directed Reid to talk to Thomas A. Drescher, a fellow devotee. When Reid approached Drescher and told him what Swami had said, Drescher testified he felt duty bound to help Reid kill St. Denis. The two then enticed St. Denis to Reid's house one night, shot and stabbed him several times, and then buried him in a pre-dug grave before he was dead. 1
The last incident likewise involved the murder of a devotee. In 1985, Steven Bryant, a former New Vrindaban devotee, began publishing statements accusing Swami of engaging in homosexual activity and permitting sexual molestation of children in the community. Around April of 1986, members of the Krishna community in Los Angeles notified Drescher that Bryant was in Los Angeles. Drescher received $2,500 from the New Vrindaban community, authorized by Swami, and flew to Los Angeles. He located Bryant and shot him twice in the head. Drescher immediately returned to Columbus, Ohio. Sheldon then picked up $6,000 for Drescher from Swami, and Sheldon and Drescher made plans to leave the country. Both were arrested before they could leave, but police later released Sheldon. 2 Sheldon then left the country for Ireland where he joined a Krishna temple under a false name. There he confessed to temple president Peter Brinkman that he had engineered the Bryant murder.
In May 1990 a federal grand jury handed down an eleven count indictment against Swami, Sheldon and Fitzpatrick. 3 The indictment charged Swami and Sheldon with conspiracy to violate RICO and a substantive RICO violation based on the predicate acts described above (Counts I, II and III). It further charged Swami and Sheldon with conspiracy to murder Bryant for money in violation of 18 U.S.C. § 371 (Count IV). Swami, Sheldon and Fitzpatrick were charged with conspiracy to commit mail fraud and substantive mail fraud in connection with the sankirtan (Counts VI and VII). Finally, Swami was charged with conspiracy to commit mail fraud and substantive mail fraud in connection with the automobile insurance scheme (Counts VIII-XI).
At the end of a several day trial, the jury convicted Appellants of the following Counts:
The court sentenced Appellants under the guidelines.
Swami, Sheldon and Fitzpatrick now appeal their convictions on numerous grounds. Swami and Fitzpatrick also appeal their sentences. Because we vacate or reverse the convictions in this case, we need not decide all the issues raised by Appellants, 4 and specifically do not decide any of the sentencing issues.
Both Swami and Sheldon challenge the admission of...
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