concurring:
While I agree with the result reached by the majority opinion and accept much of its reasoning, I write separately to voice my view that the majority is incorrect in stating that the appellants’ first amendment rights are not implicated on the facts in this case. Instead, I believe that these first amendment rights are involved, but have not been violated here.
The Supreme Court has long held that the freedom of one’s beliefs is absolutely protected by 'the first amendment. Cant-well v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). However, the Court has also recognized that “however free the exercise of religion may be, it must be subordinate to the criminal laws of [our] country.” Davis v. Beason, 133 U.S. 333, 342-343, 10 S.Ct. 299, 300-301, 33 L.Ed. 637 (1890). Consequently, “the First Amendment does not insulate a church or its members from judicial inquiry when a charge is made that their activities violate a penal statute.” United States v. Moon, 718 F.2d 1210, 1227 (2d Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984).
To convict Snowden and and the Boat-wrights of mail fraud in this case, the jury had to conclude that these appellants possessed the specific intent to defraud the church congregation. To this end, the district court properly permitted the jury to determine whether Snowden and the Boat-wrights intended their payments to be as “love offerings” under Baptist church doctrine or as “kickbacks” in a scheme to defraud the church. Such an inquiry is proper under first amendment analysis since, “although the validity of religious beliefs cannot be questioned, the sincerity of the person claiming to hold such beliefs can be examined.” United States v. Rasheed, 663 F.2d 843, 847 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982); see United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). Since' the jury concluded that these payments were “kickbacks” and not “love offerings”, the mail fraud convictions of Snowden and the Boat-wrights were proper and did not violate the first amendment.
Unlike the majority, however, it is my view that such a first amendment analysis is the most appropriate method of resolving this case. Otherwise, I agree with the majority that fraudulent activity performed in the name of religion cannot be protected *399by the first amendment. Cantwell, 310 U.S. at 306, 60 S.Ct. at 904.