BALLARD et al. v. UNITED STATES, 152 F.2d 941

STEPHENS, Circuit Judge. Appellants were convicted and sentenced for the violation of 18 U.S.C.A. § 338, the statute which prohibits the use of the United States mails in fraudulent transactions. Upon appeal to this court the judgment of conviction was reversed, Judge Stephens dissenting, 1943, 138 F.2d 540. In the course of the trial, the court ruled that inquiry into the truth of certain claimed happenings and powers of certain persons would encroach upon the field of religion and that the issue before the jury was not as to the truth of the claimed happenings or powers but was as to appellants’ belief in them.

A statement of this import was given the jury after conference in chambers between the presiding judge and counsel for all parties. This theory of the issue was adhered to consistently throughout the trial and in counsel’s addresses to the jury and was incorporated in the judge’s charge to the jury. Throughout the trial the record discloses no objection by either party to such treatment of the issue; rather it shows complete agreement therewith. Only later did counsel for defendants claim error in regard to it.

The majority of this court reversed upon this point alone although there were other points in the appeal. Upon certiorari from the United States Supreme Court this court was reversed by a divided court, United States v. Ballard, 1944, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148. Mr. Justice Douglas wrote the prevailing opinion, which was concurred in by Mr. Justices Black, Reed, Murphy, and Rutledge. In his opinion Mr.

Justice Douglas held that counsel had agreed to try the case under the ruling above referred to and held that the court was right in not permitting the trial as to the truth of the claimed happenings or possession of claimed powers and would have been right even in the absence of an agreement to that end. He left unruled upon, the question whether or not such construction of the issues effected an amendment to the indictment. The case was remanded to us to rule upon these and all other questions not treated in the prevailing opinion. Mr. Chief Justice Stone dissented in an opinion concurred in by Mr.

Justice Roberts and Mr. Justice Frankfurter. The Chief Justice with his concurring associates thought there was no error in the trial and held for a reversal of this court and the affirmance of the conviction. Mr. Justice Jackson was for a flat reversal of the conviction and dismissal of the cause upon the ground that neither the truth of a religion nor the genuineness of a professed belief in a religion can be the subject of a court inquiry. Such is the posture of the case as it reached us for our second consideration.

Upon our second consideration we gave the record, briefs, oral argument, and especially the several expressions of the Justices, earnest study, and a majority came to the conclusion that the judgment of conviction should be affirmed. Also, in view of the fact that the members of the Supreme Court had given divergent expressions as to their views of the case, we chose to depart from the custom of writing an opinion, and so we confined ourselves to conclusions. Judge Denman was not in agreement with the majority and he wrote an opinion fully discussing the several issues of the case.

This court is now under the necessity of ruling upon a petition in which appellants urge that we grant a rehearing and after a rehearing that we express our views upon the several issues of the case. We yield to this plea in part, by expressing ourselves upon the issues, but because we see no need for further hearing and because, after further consideration, the majority adheres to its decision, we deny the petition for rehearing. The Chief Justice, with his concurring associates, in voting to affirm the conviction, necessarily considered and passed upon every issue raised upon appeal.

Insofar as the final outcome is concerned, his opinion was in no wise in conflict with that of Mr. Justice Douglas. Mr. Justice Douglas not only found that counsel for all parties had agreed to the trial court’s expression on the religious phase of the case but held that the expression was legally correct. The Chief Justice passed the point with the following comment (322 U.S. at page 90, 64 S.Ct. at page 888, 88 L. Ed. 1148, his opinion, supra) : “Obviously if the question whether the religious experiences in fact occurred could not constitutionally have been submitted to the jury the court rightly withdrew it.

If it could have been submitted, I know of no reason why the parties could not, with the advice of counsel, assent to its withdrawal from the jury.” No member of the Supreme Court has used language decisive of the case which conflicts with that of the Chief Justice, except Mr. Justice Jackson. In the latter’s dissenting opinion it is held that there is no propriety in submitting the sincerity of a professed belief to a court for decision.

Upon that phase of the case the Chief Justice says (322 U.S. at page 89, 64 S.Ct. at page 888, 88 L.Ed. 1148, supra) : “With the assent of the prosecution and the defense the trial judge withdrew from the consideration of the jury the question whether the alleged religious experiences had in fact occurred, but submitted to the jury the single issue whether petitioners honestly believed that they had occurred, with the instruction that if the jury did not so find, then it should return a verdict of guilty.

On this issue the jury, on ample evidence that respondents were without belief in the statements which they had made to their victims, found a verdict of guilty. The state of one’s mind is a fact as capable of fraudulent misrepresentation as is one’s physical condition or the state of his bodily health.” It is worthy of note that the Chief Justice suggested that there were points in the case distinct from any religious note and that the case could not be affected by any ruling relating exclusively to religion.

The Chief Justice treated other issues raised upon appeal, among them the effect upon the indictment of the court’s questioned instruction. He found no error and did not doubt the indictment’s continued validity. It may sound presumptuous, for us as members of an intermediary court to say that we regard the Chief Justice’s treatment of these questions as satisfactory and as errorless. Two points upon appeal were not mentioned in any one of the opinions written by members of the Supreme Court, and each is regarded as decisive by our dissent-ting associate.

He thinks the conduct of the district attorney in his argument requires reversal. It is our opinion that if the conduct of the prosecution in argument in this case constitutes error, then, the prosecution in every case is limited to a listless, vigorless summation of fact in Chesterfieldian politeness. Gone are the days of the great advocates whose logic glowed and flowed with the heat of forensics! Gone, except for counsel for the defense.

Courts, jealous of the rights of the accused as well as with an eye to the appeal if the government wins, will seldom admonish defense counsel in his lachrymal appeal for a verdict of acquittal notwithstanding the evidence of guilt. Even yet will the district attorney be tried instead of the defendant and be found guilty by the defense attorney as having prostituted his superior mind to heartless persecution.

We think that seldom will an innocent man unjustly become a convict through the heat and overstatement of a district attorney but the guilty will no doubt escape his just deserts if the district attorney is unduly restricted. Counsel in opening argument told the jury: “The government claims in this case though, gentlemen, that this Ballard racket, as we might refer to it now in argument, is a Aim flam scheme that has been unparalleled in history. These defendants have been the most successful fakers in the knowledge of the history of fakery, and I think that is a tribute to the principal organizer Edna W.

Ballard.” To this statement defense counsel objected but declined to elaborate upon his objection. The court told the jury that it was going to permit fullest argument, and that counsel may at times overstep themselves in the heat of argument, and that the jury should use its best judgment, having heard the evidence. Looking at the evidence from the prosecution standpoint, the expression objected to is mild.

The defendants claim at least to believe that they can do, and have done, and have experienced more extremely remarkable and unusual things than any other persons in history — things all the way from religious miracles to what generally have been referred to as charlatanry, black magic, love potions, et cetera.

Justice Jackson, who would dismiss the case upon legal-philosophical reasons, does not restrain himself in expressing his view of the evidence when he says in the formality of an official opinion: “I should say the defendants have done just that for which they are indicted. * * * I can see in their teachings nothing but humbug, untainted by any trace of truth.” Nothing said by government counsel bites as deeply as this statement. In his closing address Mr. Neukom of government counsel says: “Let your verdict be a warning to those people who would be religious racketeers.

Let’s clean out the money-changers from the temple.” Again he said: “We have toleration and feeling for all people, and 1 have it for them. It isn’t pleasant to prosecute people, and don’t think it is. Mr. Cannon (for defense) said the hard side is the defense. Gentlemen, if you have a heart in you, it •isn’t entirely so. It is hard to prosecute people, and that is true.” Again: “We have just got human concepts, gentlemen. I don’t want you to be intolerant of these people, but I want you to use your good sense.” One counsel for the prosecution referred in argument to the precipitation of gold, jewels, et cetera.

It is claimed that thereby he violated the instruction of the court in regard to religious matters, but it is not hard to see the difference .between this claimed power and the claimed intimate association with Jesus and saints. If one claims to be able to precipitate gold, that is, just get it from where it is not, the gold would remain visible proof of the claim. But if one were to be put to his proof that he “walks with Jesus,” the burden would be very different if not impossible to carry.

Defendant-appellants in this case were relieved from such difficulty since the extent of the requirement was that they at least should believe in the truth of the remarkable things they taught, and got money for, and in connection with which they used the United States mails. We discern nothing in counsel’s argument on either side not fully within the concepts of honorable members of the American bar. Our dissenting associate holds that it was reversible error for the trial court to proceed to trial with a jury selected from a jury list made up intentionally of males only.

As heretofore stated, the point was raised and presented to the Supreme Court and was given no mention in any of the Justices’ opinions. In the circumstances of this case we find no error. The petition for rehearing is denied.