United States v. David Meyers

Reeore’s conspiracy middleman role BALDOCK, Before BARRETT and by stating directly that he dealt with BRORBY, Judges. Circuit primarily when fact he dealt allegedly BARRETT, pursuant Reeore. Jones lied Judge. to an Senior Circuit agreement Reeore, Meyers, between and Meyers (Meyers) appeals David from his provided himself caught which that if Reeore following conviction and sentence entered intentionally and Meyers Jones would blame jury trial guilty wherein he was found conspiracy for the entire Meyers so that conspiracy possess with intent to distrib- “try could out” his freedom defense. marijuana, ute and to distribute in violation (Count trial, I), § At Jones aiding January of U.S.C. and testified that from and July, abetting possession he would receive with intent to distribute between five marijuana, pounds marijuana and in seven from violation of 21 Reeore U.S.C. 841(a)(1) (b)(1)(C) every days; July, 1994, §§ seven to § and ten in and 18 U.S.C. he (Count II). Paso, Texas, marijua- traveled to El to obtain Reeore,

na from Federico at the direction of acting Meyers; who was at the Facts direction of August, and at the end of he traveled to (Jones) August On Carl Jones Tucson, Arizona, Meyers’ to meet with cous- purchased pounds marijuana four from in, Meyers, pounds Mitchell and obtain four Meyers Tucson, Arizona, Mitchell in which marijuana. Reeore testified that he was arranged by Meyers had been coeonspir- and receiving marijuana all the he distributed to ator, (Reeore). Scott Reeore Jones mailed Jones from acting and that he was at marijuana Casper, Wyo- to himself in by delivering marijua- direction ming, in attempt discovery. to avoid The na to Jones. attempt marijuana failed and the was discov- trial, Meyers ered. Before filed numerous mo- including tions motions to dismiss on based ultimately cooperate Jones decided to and religious freedom under the First Amend- marijua- in a series of statements described a Religious ment and the Freedom Restoration himself, conspiracy allegedly involving na Act, (RFRA). § seq. 42 U.S.C. 2000bb et. (Federico) Meyers, Richard Federico and hearing Meyers’ At the freedom Meyers. provid- Mitchell Jones’ statements defense, Meyers testified that he is the Wyoming ed the basis for Division Crimi- founder and Reverend of the Church Mar- Investigation Special Agent nal Steve Freel’s ijuana and that is his sincere belief that his Freel) (Agent testimony pre- and evidence use, possess, grow commands him to grand jury. Agent sented to the Freel testi- marijuana good and distribute for the grand jury fied to the that Jones was in- planet mankind and the earth. storing marijuana packaging volved quantities Meyers various thorough analysis, for between Janu- After careful and ary August, exchange pay- drug for district court concluded that the neutral subject prohibit religiously this motivated to a First which

laws at issue were conduct, unduly challenge burden his constitutional free exercise Amendment religion. Meyers right to free exercise of not constitute a Meyers’ beliefs did substantially that in order to bur- RFRA. v. maintains United States purposes conduct, religiously gov- motivated (D.Wyo. den F.Supp. Meyers, 906 compelling 1995). Therefore, ernment must demonstrate the court denied his mo narrowly tai- state interest and use means a RFRA defense.1 tion to raise to achieve that interest. lored Meyers guilty on jury found both The Free Exercise Clause of the First thirty-three sentenced counts and he was that, “Congress guarantees shall years super- Amendment imprisonment, three months release, respecting make no law an establishment of and assessed $100. vised

religion, prohibiting the free exercise I. In thereof....” U.S. Const. amend. Issues Connecticut, 303- Cantwell (1) that: appeal, contends On 900, 903-04, 84 L.Ed. 1213 prohibiting his reli- court erred district (1940), recognized that there are the Court (2) defense; the indictment gious freedom religion: aspects of the free exercise of two (3) insufficient; legally indictment was and freedom to act. freedom believe proof improperly amended was hand, compulsion On the one it forestalls (4) trial; process he was denied due acceptance any law of the creed or timely inform him or government’s failure to practice worship. form of Free- infirmity testimony in the the court of the dom of conscience and freedom to adhere jury; presented grand the district religious organization or to such form of failing to award him a two court erred worship may as the individual choose can- accep- level for point in his offense reduction not be restricted law. On the other (6) the district court responsibility; of tance hand, safeguards the free exercise of the marijuana in its calculation erred religion. chosen form Thus the Amend- (7) him; to quantities attributable concepts, ment embraces two to —freedom failing timely in to ad- district court erred freedom to act. believe and post- pre-trial issues of release and dress the appeal. 303, pending release conviction Id. at at 903. S.Ct. pro the freedom to believe and While

Discussion religious fess whatever doctrines one desires Religious Freedom Defense I. absolute, the freedom to act cannot be. 303-04, Id. at 60 S.Ct. at 903-04. “Conduct that the district court contends subject regulation protec remains to for the failing to balance his interests his erred society. tion to act must freedom governmental interests as re- preserve appropriate have definition to quired by Amendment and the the First 304, protection.” Id. enforcement of that at RFRA; refusing recognize interpre- to his 60 S.Ct. at 903. refusing religion; and to tation of his own religion. give his beliefs the status of Div., Employment Dep’t In Hu Or., Smith, man Resources v. 494 U.S. Clause A Free Exercise 872, 1595, (1990), S.Ct. right the Court held that the to free exercise Meyers asserts that as Reverend Marijuana it is his sincere does not relieve an individual of the Church of use, obligation comply religion commands him to with a valid and belief that his marijuana general applicability possess, for the neutral law of on the and distribute (or ground proscribes pre planet earth and that the law benefit of mankind and scribes) religion prescribes §§ and 18 conduct that his that 21 841 and 846 U.S.C. U.S.C. 14, was filed on November 1995. 1. court denied motion before written Order The district (D. (ROA, Meyers, F.Supp. hearing v. at on October United States trial 68-70). However, Wyo.1995) at the district court's Vol. III (or applica religious objector’s generally does a ernmental action on proscribes), nor spiritual development.” Lyng particular [v. form North- prohibition criminal on a ble Assn., Cemetery west Indian Protective substantially a reli that burdens of conduct S.Ct. justified by a “com gious practice have to be L.Ed.2d 534 To make an ]. individ- (citing pelling governmental interest.” Unit obligation obey Lee, ual’s such a law contin- 263 n. v. 455 U.S. ed States (1982)). gent upon the law’s coincidence with his 1051, 1058 3, n. 71 L.Ed.2d S.Ct. religious beliefs, except where the State’s Smith, argued respondents In that “their compelling permitting him, by interest is using place[d] peyote motivation beliefs, virtue his “to become law unto beyond of a criminal law that them the reach States, himself,” Reynolds v. United at their reli specifically directed [was] [145], 167, 25 L.Ed. 244 [1878] concededly con —con- gious practice [was] tradicts both constitutional traditions and applied to those who use the stitutional as common sense. drug 494 U.S. at for other reasons.” (footnote respondents further 110 S.Ct. at 1599. The Id. at at 1603 omit- ted). argued though exemption from “that even generally applicable criminal laws need not case, Meyers’ challenge In our automatically religiously mo be extended to his convictions under the Free Exercise actors, at claim for a reli

tivated least the First, Smith, Meyers must fail. as in Clause gious exemption under the must be evaluated challenges application of valid and neu Verner, balancing test set forth Sherbert general applicability tral laws grounds they prohibit conduct that (1963),” governmental actions that where Therefore, required by religion. his we hold substantially religious practice burden a Meyers’ challenge fails for the same justified by compelling govern must be respondents challenge in reasons as the Smith, 882-83, mental interest. failed, i.e., right Smith to free exercise of 110 S.Ct. at 1601-03. religion under the Free Exercise Clause decision, reaching stated its the Court the First Amendment does not relieve an obligation comply that an individu- “[w]e have never held individual of the with a compli- general applicability him from al’s beliefs excuse valid and neutral law of prohibiting ground incidentally that the law af ance with an otherwise valid law on the Second, regulate.” religious practice. conduct that the State is free to fects we hold that 878-79, when, here, challenge Id. at 110 S.Ct. at 1600. The Court as the is to a valid only general applicability, pointed out decisions neutral law of the law “[t]he by govern justified compelling held that the First need not be a [it has] which Amendment neutral, application generally appli- a the Lukumi bars of mental interest. See Church of Hialeah, religiously Aye, City action cable law to motivated have Babalu Inc. v. 508 U.S. of alone, 2217, 2220-21, 124 involved not the Free Exercise Clause conjunction but the Free Exercise Clause in protections.” Id. at

with other constitutional B. RFRA (citations omitted). 881, 110 at 1601 S.Ct. Meyers argues that district court erred the addition, rejected specifically In the Court refusing recognize interpretation his respondents contention that a neutral law give refusing and in his his own general applicability that burdens a reli- under beliefs the status justified by compel- gious practice must a be RFRA ling governmental interest. The Court held that: rejection response In of the Court’s ability gener- compelling governmental interest test government’s

The to enforce Smith, socially Congress passed the RFRA reestab ally applicable prohibitions of conduct, ability carry lishing compelling interest test of Sher harmful like its bert, 398, 83 10 L.Ed.2d aspects public policy, out “cannot S.Ct. other Yoder, gov- 92 depend measuring the effects of a and Wisconsin 1482 (1972), requirements by preponderance a of the as the old 32 L.Ed.2d

S.Ct. evidence, govern- shifts to the governing the burden all eases analytical framework challenged reg- that the ment to demonstrate religion is substantial where free exercise 2000bb(b)(1). compelling a state interest § ulation furthers ly U.S.C. burdened. Werner, restrictive manner. least “[g]ovemment provides that The RFRA (citing § n. 2 42 U.S.C. 2000bb- F.3d substantially person’s burden a ex shall 1(b)). if religion even the burden results ercise of general applicability, except as from a rule of requirements, Our review (b) of this section.” provided subsection nature, although largely presents factual in (b) 2000bb-1(a). provides § that: Subsection questions Thiry, mixed of fact law. may substantially a meaning burden Government F.3d at 1495. We review the religion only novo, if including it dem- person’s exercise RFRA de the definitions as application of the burden to onstrates that to what constitutes substantial burden and belief, person— religious ulti what constitutes and the to whether RFRA mate determination as (1) compelling gov- in furtherance of a is Sincerity has been violated. Id. is a factual interest; and ernmental and, matter as with historical and other un (2) fur- the least restrictive means of determinations, derlying factual we defer to thering compelling governmental in- only findings, reversing the district court’s terest. findings clearly those are erroneous. Id. 2000bb-1(b). § 42 U.S.C. Meyers’ dispute There is no RFRA, plaintiff must Under the sincerely beliefs are held and that establish, preponderance the evi substantially §§ burdened U.S.C. dence, requirements to state three threshold and 846 and 18 2. The issue is U.S.C. Thiry v. prima facie free exercise claim. sincerely whether his held beliefs are “reli (10th Cir.1996). Carlson, beliefs,” gious philosophy than a rather or (1) governmental action must substan The issue, way analyzing of life. this (2) burden, tially belief rather court district examined eases have life, way philosophy than a which question religion” delved into the of “what is sincerely plaintiff. Id. belief is held catalogued many factors used to only government need accommodate the a set of determine whether religious convictions. exercise of actual Wer Meyers, F.Supp. in nature.2 at 1501. McCotter, 1476, 1479 n. 1 ner v. The court used its list of factors to then Cir.) Yoder, 215-19, (citing 406 U.S. at examine beliefs to determine if his 1533-35; Bd., Thomas v. Review S.Ct. at sufficiently beliefs fit the factors to be includ 1425, 1429-32, 707, 713-18, 101 “religious ined the realm of beliefs.” denied, (1981)), 624 cert. L.Ed.2d -, 2625, Keeping L.Ed.2d 866 in mind that the threshold for 115 132 establishing plaintiff has established the thresh- nature of his beliefs Once the (E.D.N.Y.1987); Hilton, "gleaned” many Jacques F.Supp. 2. The court of these v. 569 district following (D.NJ.1983), (3rd aff'd, cases: v. Com factors from 730 738 F.2d 422 Cir. Africa Pa., (3rd Cir.1981), 1025 1984); monwealth 662 F.2d People Church the Chosen v. United of of denied, 908, 1756, 72 cert. 456 U.S. 102 S.Ct. States, (D.Minn.1982); F.Supp. 548 1247 Wom (1982); Yogi, 165 Malnak v. 592 F.2d L.Ed.2d Services, Thone, F.Supp. ens P.C. v. 483 1022 (3rd Cir.1979); Myung United States v. Sun 197 (D.Neb.1979), (8th Cir.1980), aff'd, 636 F.2d 206 denied, Moon, (2nd Cir.1983), 1210 cert. vacated, 452 U.S. 101 S.Ct. 69 971, 104 S.Ct. 80 L.Ed.2d 818 (1981); Berger, Stevens v. 428 (1984); Founding Scientology Wash Church of of Brewer, (E.D.N.Y.1977); F.Supp. Remmers v. 896 States, ington, D.C. v. United 409 F.2d 1146 (S.D.Iowa 1973), F.Supp. aff'd, denied, (D.C.Cir.), 90 S.Ct. cert. (1969); Washington 24 L.Ed.2d 427 Ethical Kuch, (1974); United States v. Columbia, Soc'y 249 F.2d 127 v. District of (D.D.C.1968); F.Supp. Fellowship of Kauten, (D.C.Cir.1957); States v. County, Cal.App.2d Humanity v. Alameda 1943); (2nd Northport-East Cir. Sherr P.2d 394 (1957). Dist., F.Supp. Northport Union Free Sch. low, Founder, following Prophet, the court considered the a. or Teacher: Many religions factors: wholly have been founded significantly or deity, influenced a Religious 1. Ideas: beliefs Ultimate often teacher, seer, prophet or who is considered life, questions address fundamental about divine, to be enlightened, gifted, or purpose, put and death. As one court has blessed. it, “a addresses fundamental and questions having deep ultimate to do with Important b. Writings: religions Most Africa, imponderable and matters.” seminal, elemental, fundamental, embrace may F.2d at 1032. These matters include writings. or sacred writing These often matters, existential such as man’s sense creeds, tenets, include precepts, parables, matters, being; teleological such as man’s commandments, prayers, scriptures, cate- life; matters, purpose cosmological and chisms, chants, rites, or mantras. place in such as man’s the universe. Gathering Many c. religions Places: Metaphysical Religious 2. Beliefs: designate particular places structures or as is, “metaphysical,” they often are ad- sacred, holy, significant. or These sites reality dress a which physi- transcends the gathering places often serve as for believ- immediately apparent cal and world. Ad- They structures, ers. physical include many religions herents believe that churches, such as mosques, temples, pyra- dimension, mode, place, there is another or mids, shrines; synagogues, or and natural temporality, they and often believe that places, rivers, springs, forests, such as souls, places by spirits, these are inhabited plains, or mountains. forces, deities, and other sorts of inchoate Keepers Knowledge: d. Most reli- intangible or entities. gions ministers, clergy, priests, have rever- System: 3. Religious Moral or Ethical ends, monks, shamans, teachers, sages. or prescribe particular

beliefs often manner By enlightenment, experi- virtue of their life, acting, way or that is “moral” or ence, education, training, or people these words, “ethical.” In other these beliefs keepers purveyors are and often describe certain acts in normative knowledge. terms, “right wrong,” “good such as and evil,” “just unjust.” e. or and Ceremonies and Rituals: Most reli- The beliefs gions proscribe ceremony, include some form of “wrong,” then those acts that are ritu- “evil,” al, “unjust.” liturgy, sacrament, protocol. or A moral or or These ethical acts, statements, may belief pre- structure also create duties— movements are scribed imposed by higher duties often pow- some are imbued er, force, spirit require significance. or transcendent the believ- —that abnegate er to elemental self-interest. Organization: f. Structure Many or Comprehensiveness Anoth religions congregation Beliefs: group have or “religious” er hallmark ideas is that led, supervised, believers who are or coun- comprehensive. not, More often than hierarchy teachers, seled clergy, telos, provide such beliefs an over sages, priests, etc. reaching array of beliefs that coalesce to g. Holidays: etymologically As is evi- provide many, the believer with answers to dent, observe, many religions celebrate, most, problems and concerns sacred, “holy,” important mark days, or words, that confront humans. In other weeks, or months. generally beliefs are not confined h. Diet or Fasting: Religions often question single teaching. to one or a Afri prescribe prohibit eating or of certain ca, 662 F.2d at 1035. drinking liquids foods and the of certain Religion: By 5. Accoutrements analo- particular days during particular or times. gy many to recog- of the established or religions, presence nized Appearance Clothing: the follow- i. and Some re- ing signs may external ligions prescribe indicate that a the manner in which be- particular “religious”: set of beliefs is physical ap- lievers should maintain their “religion” to of a religions prescribe the beliefs rise the level

pearanee, and other trigger protections. wear. type clothing that believers should therefore RFRA’s is, course, Meyers absolutely free religious groups, j. Propagation: Most think or believe he wants. If he something what thinking they have worth- non-believers, religion, that his beliefs are a then thinks to offer while or essential beliefs, it. No so be one can restrict his propagate per- their views and attempt to begrudge him and no one should those correctness. This is others of their suade this, however, work,” changes beliefs. None called “mission “witness- sometimes not the fact his beliefs do constitute “converting,” proselytizing. or ing,” “religion” uneasily as that term is defined (footnotes F.Supp. at 1502-03 Meyers, 906 Mey- recognize law. Were Court omitted). might religious, ers’ beliefs as it soon find emphasized that “it can The district court anyone slippery slope on a where itself solely recognized rely on established or not by a who was cured of an ailment “medi- determining religions guide it in whether pleasant that had could cine” side-effects unique warrants inclu new and set beliefs claim that had founded constitution- that “no one of these factors is sion” and ally statutorily protected religion based should be dispositive, and that the factors on the beneficial “medicine.” that, satisfied, minimally criteria seen as of beliefs within the counsel the inclusion Finally, Id. at 1508. the court noted that However, in ‘religion.’” Id. at 1503. term “Meyers’ professed have an ad hoe beliefs Yoder, the court noted that accord with quality neatly justify his desire to smoke ideological, “[p]urely personal, political, or marijuana.” Id. at 1509. satisfy probably would not secular beliefs agree with the district court. We Under enough inclusion.” Id. at 1504. criteria for thorough analysis district court’s Yoder, at 92 S.Ct. at 1533- See religion, adopt, indicia of which we we hold (philosophical personal beliefs are sec Meyers’ accurately espouse beliefs more (find beliefs); Africa, ular philosophy way of life rather than a and/or religious); ing secular not Ber beliefs are “religion.” The district court did not err in (beliefs man, 156 F.2d at 380-81 which are Meyers’ prohibiting religious freedom de- religious); and social are not Church moral fense. People, F.Supp. at 1253 the Chosen (beliefs which are sexual and secular are not Sufficiency II. of Indictment religious). carefully examining Meyers’ After beliefs Meyers declares that the district testimony, from his the district court derived failing grant court erred in his motion to and, concluded that his beliefs were secular grounds dismiss the indictment on the that it thus, “religion” did not constitute a legally was insufficient. reasons that Meyers, F.Supp. at purposes. RFRA Agent testimony Freel’s was insufficient to that: 1509. The court concluded support the indictment because consisted medical, Marijuana’s therapeutic, and so- entirely hearsay almost of a recitation of secular, religious.... cial effects are false statements made Jones and that Here, give cannot “reli- the Court with the deletion of false information this weight gious” much because those beliefs indictment, from the there is insufficient evi appear entirely beliefs to be derived from dence to form the basis of the indictment. words, Mey- In other his secular beliefs. sufficiency We review indictment de overlap beliefs ers’ secular Bolton, novo. States v. only in the sense that holds secular (10th Cir.1995), deeply which he believes so that he -, “religion.” transformed them into a has matter, Meyers may sincerely preliminary As a “the va While believe lidity by not religious, his this Court cannot of the indictment is affected the rely sincerity that his character of the evidence considered.” Unit- on his to conclude

1485 838, 344-45, Calandra, any prove the commission of overt act v. ed States (1974). 618, 613, conspiracy.”) (citing 38 L.Ed.2d furtherance of the Unit 94 S.Ct. — Shabani, -, -, ed v. States U.S. open be held were to If indictments (1994)). 382, 385, 130 L.Ed.2d 225 S.Ct. ground that there was challenges on the incompetent evidence before inadequate or Improper III. Amendment of Indictment resulting delay would grand jury, the of such a rule great indeed. The result be Meyers contends that the district court trial on the merits a be that before would denying erred in his motion to dismiss on the always a kind of could insist on defendant grounds improperly that the indictment was compe- preliminary trial to determine by proof amended at trial. as- tency adequacy of the evidence before and government presented, serts that the facts at jury. required grand This is materially substantially trial which were and An indictment re- the Fifth Amendment. presented different from the facts legally unbi- turned constituted and grand jury and that this variance is revers- grand jury, like an information drawn ased ible error. face, if on its prosecutor, valid A variance arises when the evi charge on the enough to call for trial of the presented dence at trial establishes facts requires Fifth merits. The Amendment alleged which are different from those nothing more. States, indictment. Dunn v. United States, v. United U.S. Costello 105, 2190, 2193-94, 60 L.Ed.2d S.Ct. 406, 408-09, 100 L.Ed. 397 76 S.Ct. Powell, (1979); 982 F.2d United States v. omitted). (footnotes Therefore, we are con (10th denied, Cir.1992), cert. only cerned with whether indictment 1356, 122 L.Ed.2d 736 U.S. 113 S.Ct. constitutional standards meets the minimal (1993). However, variance when no occurs by practical rather than

which we determine government’s theory on which the case Bolton, 68 F.3d at technical considerations. charged as that in the was tried the same Dahlman, 400; v. 13 F.3d United States Dunn, 99 S.Ct. indictment. (10th denied, Cir.1993), 1391, 1400 Moreover, exists, if a at 2194. even variance U.S. -, af we will not reverse unless variance rights. fects substantial the defendant’s “ ‘if Generally, is sufficient it an indictment Powell, 1431; 982 F.2d at United States v. charged, of the offense contains the elements (10th Cir.1991) Harrison, 751, 759 putting the defendant on fair notice of the (“variance right to did not affect defendant’s defend, charge against which he must and trial”). a fair acquittal a defendant to assert an enables prevent being placed or conviction order to Here, charged the indictment that: offense.’” jeopardy twice for the same January, between On or about Bolton, (quoting 68 F.3d at 400 United States November, 1994, in through including and Cir.1989), Staggs, elsewhere, Wyoming the District of and rt. ce MEYERS, MITCHELL MEY- DAVID (1990)). 719, 107 L.Ed.2d 739 FEDERICO, ERS, and RICHARD De- Jones, herein, in- and did fendants Carl case, In this the indictment ade unlawfully tentionally, knowingly, and charges quately informed confederate, combine, agree and conspire, him; therefore, it was valid against we hold together, persons, both and with other further. on its face and cannot be attacked Jury, to unknown to the known Grand require Notably, conspiracy because does not distribute, possess with the intent acts, government to establish overt distribute, marijuana, a I con- Schedule the overt acts al contention substance, in violation of U.S.C. trolled irrele leged in the indictment were false is 841(b)(1)(C). 841(a)(1) §§ Johnson, 42 F.3d vant. United States v. See 1-2). (10th Cir.1994) (“Under I, (ROA, indictment drug Tab 1 at Vol. marijuana statute, alleged was obtained government need not further conspiracy Texas, Mexico, Arizona, undisputed although and New from It is the indict- from Federico, ment contained false statements based on Meyers, and others at the Mitchell Freel, representations Agent him, Jones’ false to Meyers for distribution direction of perjury actual there was no committed and 2; personally Meyers would either id. at government the did not the know statements marijuana arrange for oth- transport the presented were false at the time were to so, id.; Meyers to introduced ers do Therefore, grand jury. clearly this is not Jones, arrangements or made for the intro- involving type prosecutorial a case of duction, marijuana Meyers’ to of sources misconduct, abuse, faith, bad or vindictive- begin transporting mar- the intent that Jones ness. ijuana for him. Id. Additionally, Meyers has failed to theory This is the same on which the case prejudiced show was how he as result of jury. was tried and submitted There- Indeed, infirmity. imagine this it is hard to fore, hold that there was no variance we Meyers prejudiced by any how could be al charging between the indictment the evi- leged government failure of the to inform at trial. The fact that the dence established him of Jones’ false statement inasmuch as government presented additional evidence of Jones’ false statement concerned ac conspira- the existence of a middleman Meyers tions. should know what he did and Reeore, cy, grand was unknown to the who conspiracy. did not do in the course

jury, is immaterial. fact, testimony In if Recore’s trial is to be addition, Meyers In has failed to assert believed, Meyers then it is who is to blame any alleged how variance affected a substan- testimony presented for the inaccurate to the fact, right. tial In he could do so since grand jury, because it was told he who Jones he at all times of was aware the existence of implicate conspirator. him as the main alleged Recore and Recore’s role in the con- 369). (ROA, Therefore, See Vol. IV at we Therefore, spiracy. preju- he could not be process hold that was not denied due merely a fair diced or denied trial because extraordinary remedy and that of dis government uncovered another member missing imposed the indictment not be shall conspiracy agreed cooperate. who here. Acceptance Responsibility V. IV. Due Process Meyers contends that the district court Meyers contends that he was denied due failing point erred in to award him a two process by government’s timely failure to reduction in his acceptance offense level for inform him and the court of the fact that 3E1.1(a). responsibility under U.S.S.G. statements, pre-trial pre- Jones’ which were Meyers states that he is entitled to a two grand jury through Agent sented to the point reduction his offense level based on testimony, Freel’s were false. as- pre-trial “clearly his statements demonstrat serts that where an indictment is obtained ing recognition acceptance and affirmative testimony grand jury, pro- false due personal responsibility for his criminal requires immediately cess conduct.” and, opposing inform the court and counsel reduction, To receive such a the de material, “perjury” grand to inform the prove by fendant preponderance must jury. Meyers proper maintains that clearly the evidence that he has demonstrat remedy is to dismiss the indictment. acceptance responsibility ed for his of prevail process Ivy, order to on a due fense. United States v. claim, (10th Cir.1996). preju a defendant must actual show “Whether defen process “require[s] A clearly acceptance dice. due violation dant has demonstrated specific showing prejudice responsibility question identifiable is a factual we review affecting rights.” only the accused his substantial for clear error.” Id. See United States Robertson, Comosona, Cir.), United States v. 45 F.3d 1423 (10th Cir.1980) omitted). (citations -, 697 n. 3 doing, attributable to him. He asserts that the In “we remain so by including pounds ten sentencing judge in a district court erred mindful ‘[t]he that Griffis, marijuana to Connie ac- of related unique position evaluate defendant’s to marijuana pounds of counting For double three ceptance responsibility. this reason of sentencing July judge is involved in a transaction on of the the determination ” pounds of Ivy, counting over three mari- great review.’ entitled to deference juana testimony. from Federico’s F.3d at 1292-93. guilty general, pleading In the' government has burden prove guilt requiring government marijuana'for proving quantity of of sen responsibility, of trial denial demonstrates tencing purposes of preponderance easily government can regardless how of Garcia, evidence. United v. States prove guilt. States v. Portillo-Valen (10th Cir.1993); United States v. (10th zuela, Cir.), 394-95 F.3d Ortiz, Cir.1993). F.2d -, review this under a “We determination clear (1994). However, in L.Ed.2d “rare situa standard, ly and we will not erroneous dis tions,” may deserve the reduc defendant record, support it unless it no in the turb has responsibility of even acceptance tion for reviewing all the evidence or unless after we 394; though Id. at goes to trial. U.S.S.G. he firmly has convinced that an error been 3E1.1 2. note Cook, made.” United States (10th Cir.1991). review, we that on our hold Based “rare this is those situations.” not one of Mey The district court found testimony hearing at the Meyers’ pre-trial conspiracy relevant conduct in the in ers’ regarding religious freedom defense did his pounds marijuana or 38 volved 83 kilo acceptance not rise level of to the level grams; therefore his base offense was criminal responsibility for conduct If assertions as accept 18. we true charged Although he ad in the indictment. pounds be 67 his relevant conduct would marijuana and mitted that he used distribut 2D1.1(c) § kilograms. Under U.S.S.G. part it to as the Church of ed others (44 (88 kilograms kilograms pounds) to Marijuana, distributing denied specifically he marijuana to a pounds) correlates base marijuana and he refused answer to Jones Therefore, Meyers’ level of offense 18.4 base relating questions specifically other own offense level under his calculations (ROA, charges Vol. Ill at in the indictment. Thus, this issue is would also be 18. without 54). fact, Meyers actively testified he merit. discourage trafficking from in tried Jones Therefore, marijuana. 62, 64, and 65. Id. at VII. Bail and Release guilt government prove had to at trial Meyers the district court contends and, essence, specifically disprove Meyers’ in failing his motions for erred to address Accordingly, the district court statements. release, pretrial denying him re- pretrial Meyers a denying point did not err .two lease, failing his motion to address for acceptance reduction in his offense level appeal. post-conviction pending release responsibility.3 2,1995, 19,1995, May and on June On Marijuana Quantity of VI. for a Detention government filed a Motion Hearing pre- rebuttable and invoked the maintains that district court 3142(e) § sumption that no calculating quantity marijuana under 18 U.S.C. erred support record to cannot find evidence in the 3. The asserts was of- government’s assertion. plea pre- fered a that wotdd have conditional pursue any legal right he served his issues sup- pro- This would also wished the RFRA. table under 4. Under the measurement conversion vided, ports equals pound marijuana that the district de- our conclusion court’s one 0.4536 acceptance kilograms. Application § level for 2D1.1 Note nial a reduction in offense U.S.S.G. error; however, responsibility was not we 10. conditions of release will assure defendant’s A. Pretrial Release safety appearance community. and the 3142(f)(1)(C), Under 18 U.S.C. 10, 1995, July Meyers On was arrested in judicial officer shall hearing hold a detention apparently on the warrant Colorado issued upon motion the in a case 19, 11, May July Wyoming on 1995. On involves offense for which a maxi 1995, Meyers appeared imprisonment years before mum term of Colorado of ten prescribed more is in the Controlled Judge Sub Magistrate 0. Edward Schlatter and Act, §§ seq. stances 801 U.S.C. et. “The custody was remanded to the of the United hearing immediately upon shall be held 14, 1995, July Meyers’ On States Marshall. person’s appearance judicial first before the right identity hearing to an waived his with person, officer attorney unless that or the for preliminary right hearing. no to a At the Government, seeks a continuance.” time, Magistrate Judge same Colorado Rich- 3142(f). § U.S.C. Meyers ard M. Borcher found that was a The district court pretrial failed to hold a danger community and ordered that hearing timely detention in a manner.5 charg- he be and transferred to detained provide Meyers While the failure to with the district, ing Wyoming. hearing demanded the statute is unfortu Meyers arraigned was nate, the District it not a require sufficient reason to Wyoming August mandatory Court for the District of on release of the defendant. United Montalvo-Murillo, 11, 711, States v. arraignment The 1995. minutes 2072, 110 S.Ct. By L.Ed.2d 720 reflect that a motion for bond was to be filed token, justifica the same it is not a sufficient date; however, and heard at a later no date Meyers’ tion to reverse otherwise valid con 14,1995, August Meyers was set. On filed a Rivera, victions. See also United States v. Septem- Motion for Pretrial Release and on (10th 906, Cir.1988), vacated, 837 F.2d 12, 1995, Meyers ber filed a Second Motion (10th Cir.1990) (failure 900 F.2d 1462 of the Release. Pretrial comply statutory district court to with re 2, 1995, quirements is not Trial commenced October sufficient reason to and the dismiss charges). all jury guilty returned a verdict of on both afternoon, counts 1995. That on October The district court in failing timely erred hearing Meyers’ court held a district on Meyers’ pretrial address release motions. outstanding pretrial motions for release. However, Meyers because was convicted on counts, court district denied motions on the both the error was harmless and the Montalvo-Murillo, grounds Meyers’ history issue is now moot. failing has See (harm 110 S.Ct. at 2079-80 appear flight espe- and that he was a risk review). analysis applies § less error cially already since he had been convicted. 12). (ROA, Supp. IVol. at 8 & Appeal B. Release on 1, 1995, Meyers On December was sen- hearing Since the detention oc imprisonment tenced to 33 months and three Meyers curred after was convicted and the years supervised release. On December district court based ruling, part, its on the 12, 1995, and, appeal filed a notice of already convicted, fact that had been simultaneously, pending a motion for release Meyers’ we will treat December appeal. ruling Mey- There has been no appeal motion as an to this court of the ers’ December motion for release district post-conviction court’s denial of re 3145(c).6 either the district court or this § court. lease under U.S.C. Our “re- untimely 5. The district court was because motions were not quired by promptly determined § as re- 3145(b). hearing days 18 U.S.C. did not hold a detention within five court, appearance initial in its see 18 Although filing appeal usually of a notice of 3142(f), (2) Meyers’ U.S.C. motions for a jurisdiction, divest the district court of further pretrial “appeals” release are construed as of the the initial determination of whether a convicted bond, magistrate judge’s Colorado denial of pending appeal defendant is to be released is to (3rd Cir.1981) vania, plenary F.2d or release orders view of detention (“[Judges ill-equipped fact and to examine questions law and as mixed religion”), breadth and content an avowed independent, due to the dis deference findings.” factual purely trict court’s Kauten, (10th (1982); Stricklin, 1353, 1355 United States v. States v. (2d Cir.1943) (recognizing Cir.1991). definition of “is found Affleck, In United States history incapable human and is race Cir.1985), we held 952-53 words”); compression into a see also few appeal, a court grant pending bail order to Schools, Inc., 556 Brown v. Dade Christian (1) his must the defendant has met find that (5th Cir.1977) (judges filed two F.2d 310 convincing proving clear and burden of in dissenting opinions and two concurrences pose likely not or a that he is to flee evidence attempting religion to in order case define any danger safety person or to the other pol religious to school’s determine whether community if under to released icy religious or of racial discrimination was 3143(b)(1), by a § he and has established denied, nature), in political or cert. 434 social ap preponderance of the that the evidence 1063, 1235, 98 S.Ct. delay, appeal peal purpose is not for (1978). fact, question of law or raises a substantial Yoder, 205, v. 215- In Wisconsin question and is determined if that substantial 1526, 1533-34, L.Ed.2d 15 32 favorably appeal, defendant on the deci to (1972), Supreme religious that Court held order likely to result reversal or an sion is philosophical and beliefs are distinct from impris for a of all counts on which new trial personal provide a test choices but failed to imposed. onment has been against courts or a definition which lower Here, district court found that religious petitioners hold the claims of could failing to that he history appear had a warrant to determine whether the claims flight posed significant risk. We conclude protection. Many courts have constitutional findings amply that district court’s compelled by the made felt distinction supported by Meyers has the record and that religion. Yoder to establish definition failed that he has satisfied the to establish Ward, v. F.2d States 989 See United required for release stated criteria Peterson, (9th Cir.1992); Quaring v. 3143(b). Therefore, court’s de- district (8th Cir.1984), aff'd, 728 F.2d appeal nial pending of bail is affirmed. 86 L.Ed.2d S.Ct. AFFIRMED. We, (1985); Africa, how 662 F.2d at 1031. ever, In to until now. had declined do so BRORBY, Judge, respectfully Circuit McCotter, n. 1 Werner v. dissenting. (10th U.S. -, Cir.), (1995), 2625, 132 recog we proper Because I do not believe it is the then found to the distinction Yoder and role of the court establish a factor-driven nized is, however, hew to religion plaintiff, I need not test used to define what a “[a] to be enough particular religious orthodoxy; my colleagues. from respectfully dissent gov that a religion power plaintiff to ability to define is the for demonstrate or deny religion. has interfered with the exercise freedom of The ethereal ernment deeply held posed prob- expression of her his own personal nature of has approach an attempted Id. at 1480. I believe lems most courts have faith.” evaluating the prevents from Wiggins Sargent, v. the courts define it. See (“The Cir.1985) expression individual is orthodoxy and determination the man approach keeping most with religious or not is of whether a belief Supreme ap- and the must be dates of the Constitution extremely delicate task which caution.”); For, free Pennsyl- it seems me proached v. Court. Africa Notes, Advisory R.App. Committee Fed. P. be the district court. United States also made (b). (10th Cir.1985). Affleck, See Subdivision guaran- which all progress exercise we are faction the of those sentiments necessarily teed the First Amendment which tend to restore man to all his natu- rights rights, includes individuals to define ral convinced he no has natural religion. Accordingly, right their own it is an un- in opposition to his social duties.” productive unnecessarily invasive exer- States, Reynolds v. United attempt cise for the courts to evaluate an 25 L.Ed. 244 The Court then held religious practices individual’s claims and “may accepted Jefferson’s words be al against any preconceived set standard of no- most as an authoritative declaration of the types tions of what beliefs are scope and effect of the amendment thus se being recognized by valid of the courts. Congress cured. was deprived legisla of all fact, objector context, in the conscientious power opinion, tive over mere but was left Supreme Court has held free to reach actions which were in violation may prove. “Men believe what cannot of social good duties or subversive of order.” They may put proof be of their Id.; also, Ballard, see 322 U.S. at Religious doctrines or beliefs. (noting S.Ct. at 886 the intent of the “fathers experiences are as which real as life to provide of the Constitution” to for the “the may incomprehensible some be to others.” possible conflicting widest toleration of Local boards and courts in this sense are protection beliefs, religious views” and reject they not free to beliefs because con- even preposter those deemed or incredible “incomprehensible.” sider them by Beason, people); ous most Davis v. 333, 342, 10 299, 300, U.S. 163, 184-85, S.Ct. 33 L.Ed. 637 Seeger, United States v. (1890) (“[w]ith man’s 850, 863, relations to his Maker S.Ct. L.Ed.2d 733 obligations may and the Ballard, he think (quoting im United States v. pose, and 882, 886, expression the manner in which an 64 S.Ct. 88 L.Ed. 1148 (1944)). shall be made him By of his belief on attempting to those evaluate another’s subjects, permitted”). no can religion interference be with a factor-driven test we have expressed The Court the same essentially gutted sentiment in the Free Exercise Clause Connecticut, Cantwell v. meaning ignoring of its U.S. 303- Supreme 900, 903-04, 84 L.Ed. cautionary Court’s person’s words that a (1940),when it held “incomprehensible” views can be to the court religious and still be in his or her “own The legislation constitutional inhibition of things.” scheme of Id. subject on the religion has a double aspect. hand, On the one it forestalls com- early In opinion addressing the Consti- pulsion by acceptance any law of the meaning “religion,” tutional Supreme practice any creed or the form of wor- recognized Court first that religion the word ship. Freedom of conscience and freedom is not defined in the Constitution and then to organization adhere to such or turned to Thomas Jefferson’s views that form worship may as the individual “religion solely is a matter which lies be- choose cannot be restricted law. On God; tween man and his that he owes hand, safeguards other it the free exer- account to none other for his faith or his cise of religion. the chosen form of Thus worship; legislative powers that the of the the Amendment concepts,— embraces two only, reach actions and not freedom to believe and freedom to act. opinions, contemplate sovereign —I but, The first is absolute in the nature of reverence that act of the whole American things, the second cannot be. people legisla- which declared that their ture should respecting ‘make no law an The absoluteness of the freedom to believe prohibiting establishment of or and the freedom to exercise a chosen form of thereof,’ building free exercise thus a wall significantly is diluted a court separation sponsored between church and State. inquiry into what the individual Adhering expression supreme to this of the expresses believes and how he or she those will of rights the nation in behalf Although of beliefs. provided by the factors conscience, I shall see with majority opinion sincere satis- arguably are content (1910). neutral, perience referring require an individual to an they still individual’s relation what he considers concerning what he or she provide evidence divine, Professor James used word expresses he those and how or she believes denoting ‘divine’ its broadest sense as may judge then so that courts beliefs object godlike, is or whether is accept- practices are the beliefs and whether specific deity. a is not Id. at 34. There- “religion” a under enough to be labeled able fore, Clauses, Religion everyone under the scrutiny clearly usurps definition. Such our respect- entitled view is to entertain such right to ex- the individual’s to believe and ing his to what relations he considers the he or she choos- press those beliefs however relationship such im- divine the duties es. may approved by person’s as poses be has also cautioned Supreme Court conscience, any way worship and to such of what is a determination is person long thinks fit so as this not upon to turn practice or “not belief injurious equal rights of others. particular or judicial perception of the belief Moon, States v. question; religious need practice in (2d Cir.1983), logical, com- acceptable, not be consistent or I S.Ct. believe First prehensible to others order merit capturing this definition comes closest to protection.” Thomas v. Review Amendment elusive, inherently spiritual personal Div., 450 Employment Bd. Sec. Indiana I religion. nature of also believe under inappropriate, it is such definition (1981). Furthermore, “it is no impossible, analyze evaluate reli say that business of courts to what gious beliefs of an individual under factor- activity group is religious practice or for one approach. appropriateness The of the driven religion protection not under the of the First openness, definition lies its which above Island, Rhode Amendment.” Fowler v. also makes unworkable as a standard for 67, 527, 70, 526, 97 L.Ed. 828 U.S. 73 S.Ct. seeking guidance in this those concrete area. Commissioner, (1953); v. see also Hernandez practice It seems to me the better is not to 2136, 109 S.Ct. engage any type attempt of an to define (“under L.Ed.2d the First Amend- assume, religion instead without de ment, reject can the IRS otherwise valid ciding, validity sincerely the of an individual’s only religious ground of on claims benefit the religious purposes for of held beliefs consti sin- taxpayers’ alleged that a beliefs are not protection. See Smith v. Board tutional held, cerely grounds not but on the that such County, Comm’rs Mobile 827 F.2d Sch. inherently irreligious”). By ap- beliefs are (11th Cir.1987) (assuming secular plying a test advocat- broad factor-driven as religion purposes humanism is a majority subjective opinion, ed the the Clause); v. Establishment United States perceptions necessarily in- of the court are (11th Cir.1982) Middleton, evaluating voked in whether what the indi- (assuming Ethiopian Coptic Zion Church is religious be is reli- vidual claims to indeed religion), valid gious. requires judge court to the It also (1983); see practices they to see if of the individual v. Bradley, also Jones 296-97 “religious.” clearly test indeed This violates Cir.1979) (assuming members of the intent, spirit, if not First to First Universal Life Church are entitled Amendment. ap protection). Amendment this Under on Second Circuit relied the works if an a claim that a proach individual makes philosopher American William James to de- substantially burdens his or government law religion fine as: religious I would assume her sincere beliefs acts, experiences feelings, validity “the of indi- religion analyzing without solitude, they practices vidual men in their so far as the tenets to see apprehend they preconceived to stand in relation fit of what a themselves some vision radical; may may approach consider is. whatever the divine.” This seem however, James, only way Religious Ex- it is the we can assure an W. The Varieties worship meeting individual absolute freedom to that interest. See United States Bauer, (9th Cir.1996). way v. what he or she chooses which important It he or she chooses. is to note practice

that such a would send us down

a “slippery slope” or create a mass shield pros

which criminal could use to thwart

ecution done in the for crimes name of reli

gion. never It has been the law in this

country prevent regulating from criminal or oth SPRADLING, Dow, B.N. Felling B.C. J.D. Cantwell, er harmful actions of individuals. er, Lamb, McClary, Philip L.M. Robert 60 S.Ct. at 903. Under the Morgans, Edgar Wilson, Leon F.L. Act, Religious Cook, Grant, Simpson, Freedom Restoration af D.R. E.L. Thom Holland, Nantz, Billy as E. raising religion, ter Robert E. defense the indi Richardson, Geier, Lorton, Billy Joe Ken J. vidual must show that his or her ppellees, sincerely beliefs are held and were substan Pla intiffs— A tially made, showing burdened. If this government may prevail then the still if it TULSA, OKLAHOMA, CITY OF necessary shows such burden to fur municipal corporation, compelling government ther interest and Appellant. Defendant — that the law is the least restrictive means of No. 95-5162. furthering interest. 42 U.S.C. § 2000bb-1. This law enforces the absolute Appeals, States Court of

freedom of the individual believe and wor Tenth Circuit. chooses, ship clearly whatever he or she but Sept. prevents freely him or acting her from ways these beliefs that are harmful

others. case, validity this I would assume the Meyers’ religious

Mr. and affirm the findings

district court’s that these beliefs are

sincerely substantially held and burdened question. Although

the laws in I am confi government

dent that the will prob have no meeting

lem proof, its burden of Olsen v.

DEA, (D.C.Cir.1989) 1462-63

(government compelling has a interest marijuana

regulating the use of and is not

required use), to accommodate sacramental 906, 110 1926, 109 (1990), yet given has not been Therefore, opportunity

an to do so. in accor requirements

dance with the of 42 U.S.C. 2000bb-1, I would reverse the district findings

court’s that Mr. sincerely

held beliefs are not and I would government opportu

remand to allow the

nity to showing meet its burden of that the compelling

laws involved serve a

interest and are the least restrictive means

Case Details

Case Name: United States v. David Meyers

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Nov 5, 1996

Citation: 95 F.3d 1475

Docket Number: 95-8079

Court Abbreviation: 10th Cir.