In the Matter of the Complaint Against

UNIVERSAL LIFE CHURCH, INC.
Post Office Box 303 at
Hawthorne, New Jersey 07507

P.S. Docket No. 7/62;

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
ThomasA. Ziebarth, Esq.
Consumer Protection Division
Law Department
U. S. Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
Rev. William Meeker
Universal Life Church, Inc.
158 Passaic Avenue
Hawthorne, NJ 07506

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of Administrative Law Judge Quentin E. Grant in which Judge Grant recommends the issuance of an order under 39 U.S.C. § 3005 based on his conclusion that Respondent seeks remittances of money through the mail for lottery tickets or shares in lottery pools and that such activities are in violation of 39 U.S.C. § 3005(a).

BACKGROUND

On May 30, 1979, the Consumer Protection Office, Law Department United States Postal Service, filed a complaint alleging that Respondent is engaged in conducting a lottery or scheme for the distribution of money by chance in violation of 39 U.S.C. § 3005. Attached to the complaint were copies of documents which Complainant alleged were direct mail advertising circulars and subscription applications which were calculated to induce recipients to remit money through the mail in order to participate in lottery pools.

A hearing was held at which Respondent appeared but presented no evidence and did not take advantage of the opportunity afforded it to cross examine the Postal Service's witness. Thereafter, Administrative Law Judge Grant issued his Initial Decision from which Respondent took a timely appeal.

At the hearing Complainant's only witness was Gerard Curullo, a Postal Service Inspector stationed in Newark, New Jersey (Tr. 5). Inspector Curullo was assigned to this matter after Inspector Clyde

Ross of the Special Investigations Division in Washington, D.C., received from an unidentified source, an unsolicited advertisement to enter a lottery pool being run by the Universal Life Church, Inc. The materials were addressed to Hosea Cooper at a Post Office box in Thurmont, Maryland.

Through the testimony of Inspector Curullo, fourteen exhibits were introduced into evidence, five of which (Exhibits 1-5) are pertinent to Respondent's exceptions. Inspector Curullo testified that Exhibits 1, 2, 4 and 5:

"... A re advertising materials I received through Inspector Ross in Washington that were unsolicited." (Tr. 6).

According to Inspector Curullo, Exhibit 3 was received by him through Inspector Ross after Inspector Curullo had ordered tickets from the Universal Life Church (Tr. 6). The exhibits are clearly requests to forward money through the mail to the Universal Life Church in order to participate in a lottery pool which offers the distribution of money winnings by chance.

With regard to how the Postal Service obtained Exhibits 1 through 5, the identity of Inspector Clyde Ross, the identity of the apparently fictitious Hosea Cooper, and the basis of Inspector Curullo's knowledge of these matters, the evidence in the record is the following testimony of Inspector Curullo:

Q Now, how did Inspector Ross happen to be involved in this particular proceeding?

A Inspector Ross has a Post Office Box in Thurmont, Maryland. He uses the name of Hosea Cooper to obtain information on merchandise that he orders through the mail that appears questionable.

Q Now, is this the real name of a real person?

A No, it is a name that Inspector Ross has used on a test box in Thurmont, Maryland.

Q Now, did he send away for this material?

A No, the original material came unsolicited.

MR. ZIEBARTH: Your Honor, I ask that Exhibits 1 through 5 be received in evidence.

JUDGE GRANT: Mr. Meeker, you may take a look at those exhibits to see if you have any objections.

MR. MEEKER: No objections.

JUDGE GRANT: The Complainant's Exhibits 1 through 5 are received. (Tr. 7)

RESPONDENT'S EXCEPTIONS

Respondent's first eight exceptions to the Initial Decision deal with the unavailability of Inspectgor Clyde Ross and Hosea Cooper, and the alleged violation of Respondent's "legal rights" by these individuals. In exceptions 1, 3, 5 and 6, Respondent contends that its rights were violated because Inspector Ross and Hosea Cooper failed to identify themselves and the purpose of their activities, and that such fictitious and clandestine operations constitute entrapment. In Irwin v. United States, 338 F.2d 770 (9th Cir. 1964) essentially the same argument was raised and rejected. The Court stated:

"The postal inspector was conducting an investigation to determine if appellants were engaging in an unlawful activity. The accusatorial stage of the proceeding had not yet been reached. This being true, the eliciting of the evidence described without revealing to appellants the identity of the investigator or advising them of their right to counsel, and without appellants then having the aid of counsel, was not violative of their rights under the Sixth Amendment, as construed and applied in Escobedo or Massiah or any other Supreme Court decision. Nor were they thereby denied any rights under the Fourth and Fifth Amendments, invoked in appellant's supplemental brief." (Irwin v. United States, supra, at pp. 777-778).

Accordingly, on the basis of Irwin there has been no violation of Respondent's rights. Respondent's exceptions 1, 3, 5 and 6 are denied.

In exceptions 2 and 7 Respondent contends its legal rights were violated becauses Inspector Ross, who Respondent identifies as its accusor, was not available for cross examination. The complaint was filed by the United States Postal Service which, through its attorneys, did appear at the hearing. Respondent was given full opportunity to cross examine the witness who was present at the hearing and rebut the evidence presented by the Postal Service. Respondent did not object to the testimony of Inspector Curullo, or the admission of the exhibits offered by the Postal Service. Moreover, Respondent did not request either prior to or during the hearing that Inspector Ross be present. Thus, Respondent's exceptions 2 and 7 are without merit.

Respondent's 4th exception alleges that Respondent's rights were violated "by an individual acting on behalf of his ambitious acts to foster his personal job career by acting on his own initiative in the pursuit to obtain case history." The record is devoid of any evidence supporting this allegation. It is, therefore, without merit.

In its 8th exception, Respondent alleges that its rights were violated by:

"Inspector Clyde Ross obtaining a complaint on the basis of a false statement that evidence was obtained 'through unsolicited mail.'"

In this regard, in its answer Respondent denied all of the allegations in the complaint. In addition Respondent specifically stated it:

"Denies all of the allegations as set forth in the complaint with Exhibit 1 and Exhibit 2 to the complaint pages 1, 2, 3 and 4 on the basis that they are literature with no substantial proof of mailing in said complaint being presented for consideration of answer."

Inspector Ross' activities have been addressed above. However, exception 8 clearly challenges the testimony concerning how the exhibits were obtained and raises a question as to whether the evidence supports a finding that Respondent did in fact distribute the circulars. The exhibits, if distributed, would clearly violate 39 U.S.C. § 3005.

Inspector Curullo testified that Exhibit 3 was received through Inspector Ross in response to a request forwarded by him to the Respondent. Envelopes included in Exhibits 1 through 5 are addressed to Hosea M. Cooper and bear the stamped notation:

"Received unsolicited under test name of C.M. Ross, Postal Inspector, Washington, DC 20260."

Accordingly, the stamp on Exhibit 3 contradicts Inspector Curullo's testimony in that it states the material was unsolicited whereas Inspector Curullo testified it was solicited. Inspector Curullo obviously believed that Inspector Ross received Exhibits 1-5 through a Post Office Box in Thurmont, Maryland. However, Complainant presented no evidence in support of this belief other than the stamped, postmarked envelopes in which the exhibits apparently were received. Nonetheless, there is no contrary testimony and the exhibits were admitted without objection of Respondent.

Moreover, at the completion of the Postal Service's case, there was a discussion between the presiding Administrative Law Judge, Respondent's representative and Postal Service counsel in which Respondent's representative commented that he believed that half of the small businesses engaged in mailing operations in the United States did not know the postal regulations. The following exchange then took place:

"JUDGE GRANT: If they don't, they are in violation of them, they may have found out the hard way.

MR. MEEKER: The same way I did." (Tr. 28)

In the context of the discussion, the exchange between the presiding Judge and Respondent's representative is an acknowledgement by Respondent that it distributed the circulars. While the statement was not made by Respondent's representative under oath, it is a statement against interest on which reliance may be placed (See Federal Rules of Evidence, §§ 804(a)(i) and (b)(3)).

Accordingly, it is concluded that the testimony and exhibits, coupled with Respondent's admission establish that Respondent did distribute circulars like those in Exhibits 1 through 5. In addition, regardless of whether postal personnel may have requested Respondent to forward the promotional materials or lottery tickets, as stated above, there has been no violation of Respondent's rights. Respondent's exception 8 is without merit.

Respondent's exception 9 alleges that various states conduct their lotteries in violation of 39 U.S.C. § 3005. With its appeal from the Initial Decision, Respondent forwarded copies of correspondence from the Maryland and New York State lotteries. Similar materials were attached to Respondent's Amendment to Answer which was received at the commencement of the hearing. Respondent argues that enforcement of the law against it, and not the states, is discrimination and that the laws are impractical, unenforceable and unclear and, therefore, the complaint should be dismissed.

The fact that, in Respondent's opinion, others may be operating lotteries in violation of 39 U.S.C. § 3005 does not justify or excuse the violation of those provisions by Respondent. Respondent does not identify any language in the law which is ambiguous, unclear, or otherwise not readily susceptible to consistent interpretation. Respondent's 9th exception is, therefore, without merit. However, having had questions raised concerning the practices of some state lotteries, by copy of this decision, this matter is called to the attention of the Postal Service through its counsel, for initiation of such action as may be appropriate.

CONCLUSION

After consideration of the entire record and the exceptions taken to the Initial Decision, it is concluded that Respondent is engaged in a lottery for the distribution of money by chance in violation of 39 U.S.C. § 3005. Accordingly, Respondent's appeal is denied and an order under 39 U.S.C. § 3005 is being issued contemporaneously with this decision.