Murray Miller (argued), Philip M. Haggerty (argued), William G. Pearson, Jr., Phoenix, Ariz., for appellant.

Edward E. Davis, U. S. Atty., Lawrence Turoff, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before HAMLEY and DUNIWAY, Circuit Judges, and ZIRPOLI, District Judge.

ZIRPOLI, District Judge.

Appellants, husband and wife, were each convicted, at a joint jury trial, of thirteen counts of mail fraud and were each fined $500 on each count and were placed on three years' probation.

Joseph Jeffers is the spiritual and secular leader of the Kingdom of Yahweh, a religious sect with its headquarters in Arizona. The Kingdom maintained one bank account, upon which Joseph Jeffers was authorized to draw. The headquarters of the Kingdom also served as the residence of appellants and as a meeting place for members of the Kingdom. Religious tracts were published by the Kingdom, which was essentially an evangelical organization which emphasized prophecy, revelation, and extrasensory perception. The Kingdom solicited new members by various commercial means and word-of-mouth. Appeals for money to members were made from time to time and certain representations were made in connection with said appeals, which representations as to the uses to which funds would be put and as to the financial condition of the Kingdom presumably form the bases of the charges here involved; namely, violations of 18 U.S.C. § 1341 (mail fraud).

Each count stems from a separate mailing of material containing representations allegedly made with fraudulent intent. The false and fraudulent representations alleged in the indictment as having been made to further a scheme and artifice to defraud by the use of the mails are set forth in three subparagraphs to paragraph 7 of the first count of the indictment and are incorporated by reference in each of the remaining counts thereof. These subparagraphs read as follows:

(a) That all contributions and donations received from victims would be and were being used to defray the cost of promoting the religious purposes of the Kingdom of Yahweh, Inc., whereas in fact a large portion of said contributions were used by the defendants in placing bets at para-mutual (sic) dog and horse tracks;

(b) that Spirit Guide drawings and paintings supplied by the defendants for $15.00 to $50.00 each were the product of a distinct and conscious spiritual vision whereas in fact they were the product of no such influence;

(c) that Reincarnation Revelations1 supplied by the defendants for $25.00 were not opinions or ideas of the defendants' own minds but rather came "from akashic records and from Yahweh himself", whereas in fact they were the mere opinions and ideas of the defendants' own minds.

Most of the proof adduced at trial went to establish facts surrounding the charge in subparagraph (a) above that money was solicited for religious purposes when in fact money was used for betting at the dog track. This evidence consisted primarily of numerous checks cashed at the dog track and numerous photographs and reels of film depicting Joseph Jeffers at the betting window and at the track energetically cheering on his favorite dog.

At the trial certain statements of defendants made to Postal Inspectors were introduced into evidence, but the jury was not instructed to pass on the voluntariness of said statements and no request for such instruction was made.

Appellants maintain (1) that the bets were for the religious purposes of enhancing the Kingdom's treasury and furthering its "religious" studies of extrasensory perception, and that therefore the conviction infringes their free exercise of religion; (2) that the government failed to prove that the betting was not a religious purpose, but implicitly relied on the fact that the jury might assume that such an act could not be a "religious" purpose; (3) that if appellants in good faith believed that the reincarnation revelations and spirit guide drawings were products of spiritual sources, as represented, then, even if not in fact the product of such sources, the first amendment protects such representations; (4) that the indictment is vague because it fails to specify exactly how much money was fraudulently employed at the dog track; (5) that the trial court erred in not instructing the jury on voluntariness; (6) that the evidence was insufficient to implicate Connie Jeffers in any scheme to defraud.

The government, having failed to allege in subparagraph (a) that betting on the dogs did not serve a religious purpose and having failed to offer any evidence whatsoever that betting on the dogs did not serve any religious purpose of the Kingdom of Yahweh,2 now, in its brief on appeal and at oral argument, disclaims any contention that betting on the dogs could not be a religious purpose or that it was not a religious purpose in this case. Rather, the government asserts that the defendants, in their solicitations for funds, represented that money received would go for specific purposes, none of which was betting on dog races, The government maintains that appellants represented that money would be used for office supplies and that the Kingdom's bank account was inadequate to meet operating expenses.3

While the government may very well have intended this latter fraudulent representation or scheme to defraud as the basis of the charges made in the indictment, the fact remains that it did not so charge. Neither this court nor the trial court is free "to change the charging part of an indictment to suit its own motions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes." Russell v. United States, 369 U.S. 749, 770, 82 S. Ct. 1038, 1050, 8 L. Ed. 2d 240 (1962). Such variance is fatal in this case for while a conviction based on the theory now advanced by the government may be permissible, we cannot say from the record before us that such was the theory adopted by the petit jury or the grand jury, or that they adopted the same theory. Therefore, we reverse.

The proof centered primarily on the allegation in subparagraph (a) of the indictment:

that all contributions * * * would be * * * used to defray the costs of promoting the religious purposes of the Kingdom * * * whereas in fact a large portion of said contributions were used by the defendants placing bets at a * * * dog * * * track * * * [Emphasis added]

In other words, the indictment conclusively assumed either (1) that betting was not a religious purpose, or (2) that according to the representations in the solicitations of contributions, betting was not a purpose for which the contributions were to be expended. Most likely, a jury would find that the charges of the indictment were proved by merely showing that some of the contributions were used for betting. Indeed, such proof would establish what is charged in the indictment. Hence, by the wording of the indictment, the government was relieved of the burden of proving either (1) that betting was not a religious purpose within the context of the indictment, or (2) that defendants represented that the contributions would be used for specific religious purposes. It is the latter which the government contends, on this appeal, was the basis of the indictment. Because we do not know what the petit jury might have considered adequate to convict, and because we do not think the indictment charges what the government contends was charged, the indictment suffers from the fatal infirmity diagnosed in Russell v. United States, supra at 770, 82 S. Ct. at 1050.

To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.

The government either (1) must claim and prove that the betting was not a "religious purpose", see United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944), or (2) must allege in the indictment that representations were made that contributions would be applied only to specific purposes and that betting was not one of them. Even if the latter was proved at trial, we cannot say that such was intended to be charged by the grand jury, for the indictment is susceptible of being construed to charge the former by its very wording which seems to equate betting with a nonreligious purpose. Therefore, because a jury might have thought that a conviction was compelled by the mere proof that some money was applied to betting, when under neither permissible alternative would such proof alone suffice, we must reverse.

Taking this view of the case, we do not reach the first amendment and other questions raised in the briefs.

As for the contentions concerning the reincarnation relevations and spirit guide drawings, we do not reach those issues either. Rather, we reverse the convictions and direct the entry of judgment of acquittal on all counts for the following reason: The spectacle presented to the jury — of a 67 year old eccentric purporting to have psychic powers, and his attractive 27 year old wife betting contributors' funds at the dog races — was so highly prejudicial that we cannot conclude that a fair trial was had on the remaining allegations, especially because the jury might have thought that such betting was alone sufficient to convict on some of the allegations in the indictment.

Reversed and remanded.