In the Matter of the Complaint Against CHURCH OF THE GOOD SAMARITAN 642 Monongahela Avenue at Glassport, Pennsylvania 15045 P.S. Docket No. 6/194; 02/22/80 Cohen, James A. APPEARANCE FOR COMPLAINANT: SandraC. McFeeley, Esq. Consumer Protection Division Law Department United States Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: Bishop Harold George Shadd The Church of the Good Samaritan 642 Monongahela Avenue Glassport, PA 15045
Respondent has appealed from the Initial Decision of Chief Administrative Law Judge William A. Duvall in which Judge Duvall recommends the issuance of an order under 39 U.S.C.?3005 based on his conclusion that Respondent, by means of solicitations mailed by it in connection with its "Bino - Bango - Bongo" game, is engaged in a scheme for obtaining money through the mail by means of false representations.
On December 7, 1978, the Consumer Protection Division, Law Department United States Postal Service, filed a complaint alleging that Respondent is engaged in conducting a scheme for obtaining money through the mail in violation of 39 U.S.C. § 3005. Specifically, the complaint alleges that Respondent's solicitations represent that:
"(a) The Church of the Good Samaritan and/or Pastor James Franklin Groomes are willing and able to pay out cash and in kind prizes to individuals who are successful at any of the eleven varieties of the 'Bingo, Bango, Bongo' game identified in Exhibit 1 to the Complaint or the six varieties of the game also listed in Exhibit 1 which use a five-digit number.
"(b) A home in a pleasant rural setting is being prepared for the care of elderly men and women under auspices of the Church of the Good Samaritan.
"(c) That donations sent with entries in Respondent's bingo games will be applied to the home described in paragraph (3)(b) above.
"(d) That Respondent expects there will be winners of one or more of the 17 separate bingo varieties identified in Exhibit 1."
The Complaint further alleges that these representations are materially false.
At the hearing held on the complaint, the only witness presented on behalf of either party was Inspector James C. Conroy of the Postal Service. Respondent was represented by Bishop H. G. Shadd, who cross-examined Inspector Conroy and offered exhibits, some of which were received into the record (Tr. 57, 71).
On the basis of the testimony of Inspector Conroy, as supported by various exhibits introduced through him, with one exception, Judge Duvall concluded that the representations made by Respondent were material misrepresentations. In Respondent's favor, he concluded that there was no proof that the Church of the Good Samaritan was not "willing" to pay the prize money if funds were available. However, Judge Duvall found that adequate funds were not available. Accordingly, he concluded that Respondent is engaged in conducting a scheme for obtaining money through the mail by means of false representations within the meaning of 39 U.S.C. § 3005.
In its sole exception to the Initial Decision, Respondent alleges that the testimony of Inspector James C. Conroy is inadmissible because portions of that testimony are based on statements made by Bishop Shadd during a routine interview at which he was not given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). According to Respondent, under Jones v. Cunningham, 371 U.S. 236 (1963), because Bishop Shadd was on parole he was "in custody" at the time of the interview and the interview was a "custodial interrogation" as discussed in Mathis v. United States, 391 U.S. 1 (1968). As a result, Respondent argues that the evidence on which the Initial Decision was based was obtained in violation of Bishop Shadd's fifth amendment constitutional privilege against self-incrimination. It, therefore, contends the complaint should be dismissed.
Respondent's reliance on Miranda and Mathis is misplaced. Those cases deal with the application of the fifth amendment of the constitution, which provides that " n o person...shall be compelled in any criminal case to be a witness against himself...." (Emphasis added.) Both cases held that self-incriminating evidence was inadmissible in a criminal proceeding where the defendant had not been warned of his right to remain silent and right to counsel.
Neither case, purports to apply to other than a criminal case. Thus, they have no application to the admissibility of a statement against interest in civil proceedings such as those brought under 39 U.S.C. ??3005 and 3007.
In addition, even if Miranda could be construed to apply to a civil action, the evidence relating to the circumstances of the interview with Bishop Shadd do not establish that it was a "custodial interrogation" as explained in Mathis. Unlike Mathis, the interview alleged by Respondent to be a custodial interrogation took place in Bishop Shadd's residence under conditions where he felt no compulsion to answer the Inspector's questions (Tr. 60-61). Furthermore, contrary to Respondent's reliance on Jones, supra, (a case dealing with Federal Court jurisdiction to issue a writ of habeas corpus), the fact that Bishop Shadd may be on parole does not, of itself, establish that the interview was a custodial interrogation. In order for there to be a custodial interrogation for purposes of Miranda, there must be a deprivation of freedom of action in a significant way, a condition which does not exist in this case.
The cases cited by Respondent and the arguments it makes on appeal do not provide grounds to grant Respondent's exception. The testimony of the Inspector which was based on the interview with Bishop Shadd was properly admitted into evidence. Respondent's exception to this testimony is, therefore, without merit.
Based on a consideration of Respondent's exception, as well as the entire record, it is concluded that the Initial Decision correctly found that Respondent is engaged in a scheme for obtaining money through the mail by means of materially false representations. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued contemporaneously with this decision.