UNITED STATES OF AMERICA v. EDWARD R. FORCHION, et al.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
July 22, 2005, Decided
SUBSEQUENT HISTORY: Subsequent appeal dismissed for lack of jurisdiction
because appeal was not timely filed, United States v. Forchion, (3d Cir. Pa., Feb.
COUNSEL: PATRICK L. DUFF, Defendant, Pro se, PHILADELPHIA, PA.
R. EDWARD FORCHION, Defendant, Pro se, BROWNS MILLS, NJ.
For USA, Plaintiff: KRISTIN R. HAYES, BERNADETTE MCKEON, UNITED STATES ATTORNEY'S
OFFICE, PHILADELPHIA, PA.
JUDGES: Stewart Dalzell, J.
OPINION BY: Stewart Dalzell
After Edward Forchion and Patrick Duff admitted that they smoked marijuana in Independence
National Historical Park (the "Park"), a magistrate judge convicted them
of possession of a controlled substance and sentenced them to probation. They now
appeal both their convictions and their sentences, contending that the prosecution
violated their rights to freely exercise their religion.
Forchion and Duff are Rastafarians. [Footnote1] Without ever applying for a permit,
Forchion and Duff invited people to gather next to the Liberty Bell Center [Footnote
2] on December 20, 2003, March 20, 2004, and April 17, 2004. [Footnote 3] Advertisements
described the events as "non[-]denominational," and the gatherings were
intended to provide participants with a forum to exercise their "freedom of
speech" and "freedom of religion" and to communicate a desire to
"end the war on drugs and end the war in Iraq." Gov't App. 59, 75. Between
about twenty and thirty people attended each of the gatherings.
On each of the three occasions, at about 4:20 p.m., [Footnote 4] Forchion and Duff
openly smoked marijuana, sometimes even announcing their drug use with a bullhorn.
As Rastafarians, they consider smoking marijuana to be a "sacrament,"
akin to a Christian's consumption of wine as part of communion. Forchion and Duff
believed that "it was legal to smoke marijuana on federal property as long
as it's in the course of [a] religious ceremony," and they smoked marijuana
to demonstrate their religious freedom (or their alleged lack thereof). Gov't App.
121, 133. They also hoped that their actions would "bring attention to the
larger issue of marijuana illegality." Id. at 76.
Before their message could spark the public's imagination, Forchion and Duff caught
the attention of park rangers who were observing their gatherings. On December 20,
2003, rangers issued citations for possession of a controlled substance [Footnote
5] to Forchion (028826) and Duff (257101). On March 20, 2004, Forchion received
citations for possession of a controlled substance (257995) and interfering with
agency functions [Footnote 6] (257996), and Duff received a citation for possession
of a controlled substance (257040). Finally, on April 17, 2004, rangers cited Forchion
for possession of a controlled substance (257037) and disorderly conduct [Footnote
7] (257038) and Duff for interfering with agency functions (256628).
Footnote 7: See 36 C.F.R. § 2.34(a). Like possession of a controlled substance and
interfering with agency functions, disorderly conduct is a Class B misdemeanor and
a petty offense. See supra note 5.
All of the charges were consolidated before Magistrate Judge Rapoport for a bench
trial. In the midst of the trial, the Government withdrew the disorderly conduct
charge against Forchion, see Gov't App. 164, and Judge Rapoport later acquitted
him and Duff of interfering with agency functions, see id. at 184-87. Both Forchion
and Duff admitted that they had smoked marijuana on the charged occasions, and they
argued that the Religious Freedom Restoration Act ("RFRA") [Footnote 8]
permitted them to do so. Rejecting their RFRA defense, Judge Rapoport convicted
Forchion and Duff on all counts of possessing a controlled substance. See id. at
Judge Rapoport later imposed on each defendant a sentence of 12 months' imprisonment
(which he suspended), 12 months' probation, a $ 10.00 special assessment, and a
$ 150.00 fine. See id. at 37-48. [Footnote 9] In addition to thirteen standard conditions
of probation, Judge Rapoport imposed two special conditions on Forchion and Duff.
Among other things, the standard conditions prohibit them from possessing or using
controlled substances, "frequenting" places where controlled substances
are illegally used, associating with people engaged in criminal activity, and resisting
certain specified attempts to confiscate "contraband" from their homes.
See id. at 41, 47. The special conditions prohibit Forchion and Duff from staging
a "protest/demonstration" without a permit and require them to participate
in substance abuse testing and treatment. See id. at 42, 48.
Forchion and Duff filed this appeal pursuant to Federal Rule of Criminal Procedure
58(g), and they now contend that Judge Rapoport erred in rejecting their RFRA defense
and in imposing conditions of probation that burden their Rastafarian practices.
A. Jurisdiction and Standard of Review
Under 18 U.S.C. § 3401 and Local Rule of Criminal Procedure 50.2(1)(a), the magistrate
judge had jurisdiction to try Forchion and Duff on the petty offenses of which they
were accused. We have jurisdiction over their appeal pursuant to 18 U.S.C. §§ 3402
and 3742(h), and we apply the same standard of review to the magistrate judge's
decision that the Court of Appeals would have applied to that decision had we rendered
it. Fed. R. Crim. P. 58(g)(2)(D). Thus, we shall review the magistrate judge's legal
determinations de novo, see United States v. Ledesma-Cuesta, 347 F.3d 527,
530 (3d Cir. 2003), and we shall not disturb his factual findings unless clearly
erroneous, see United States v. Helbling, 209 F.3d 226, 237 (3d Cir. 2000).
Forchion and Duff argue that they should not have been convicted of possessing marijuana
in a national park because they believe that their constitutional and statutory
rights to practice Rastafarianism protect that conduct.
1. Constitutional Claim
The First Amendment prohibits Congress from making any "law respecting an establishment
of religion, or prohibiting the free exercise thereof." U.S. Const. amend I.
While the "door of the Free Exercise Clause stands tightly closed against any
governmental regulation of religious beliefs as such," the government may regulate
"certain overt acts prompted by religious beliefs or principles." Sherbert
v. Verner, 374 U.S. 398, 402-03, 10 L. Ed. 2d 965, 83 S. Ct. 1790, 1793
(1963). Thus, religiously neutral laws of general applicability do not violate the
First Amendment, even if they prohibit some religious conduct. See Employment Div.
v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). Since
the Regulation is a religiously neutral law of general applicability, Forchion and
Duff's constitutional claim must fail.
2. RFRA Claim
In response to Smith, Congress enacted RFRA, which provides in relevant part:
(a) In general.
Government shall not substantially burden a person's exercise of religion even if
the burden results from a rule of general applicability, except as provided in subsection
(b) of this section.
Government may substantially burden a person's exercise of religion only if it demonstrates
that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000bb-1(a), (b). [Footnote 10]
Our Court of Appeals evaluates RFRA claims using a two-step analysis. "First,
the claimant must demonstrate a 'substantial burden' on [his] exercise of [his]
religious beliefs." Adams v. Commissioner of Internal Revenue, 170
F.3d 173, 176 (3d Cir. 1999). While our Court of Appeals has not defined the concept
of "substantial burden," it has suggested that pre-Smith caselaw
would inform whatever definition it may ultimately adopt. See id. at 176-78.
Looking to that body of precedent, we hold that, in cases like this one, the government
substantially burdens religion when it "put[s] substantial pressure on an adherent
to modify his behavior and to violate his beliefs," Thomas v. Review Bd. of
Ind. Employment Sec. Div., 450 U.S. 707, 718, 67 L. Ed. 2d 624, 101 S.
Ct. 1425, 1432 (1981), or requires an individual to choose between "either
abandoning his religious principle or facing criminal prosecution," Braunfeld
v. Brown, 366 U.S. 599, 605, 6 L. Ed. 2d 563, 81 S. Ct. 1144, 1147 (1961).
If a claimant can show that the government substantially burdens his religion, then,
in the second step of the RFRA analysis, "the government bears the burden of
proving that enforcement of the law is the least restrictive means of advancing
a compelling state interest." In re Grand Jury, 171 F.3d 826, 829
(3d Cir. 1999). [Footnote 11]
It appears that Judge Rapoport may have applied the Meyers test when he
considered whether defendants established their RFRA defense. Assuming that the
magistrate judge did apply Meyers, and assuming that it was error to apply
that decision rather than on-point Third Circuit precedent, the error would have
been harmless because Judge Rapoport made sufficient factual findings for us to
conclude that he would have rejected defendants' RFRA claim even if he had applied
the law of this circuit. See Gov't App. 182-84.
Forchion and Duff admit that they possessed marijuana in Independence National Historical
Park in violation of 36 C.F.R. § 2.35(b)(2). Nevertheless, they submit that they
should not have been convicted because they believe that they established a RFRA
defense. After a lengthy bench trial at which defendants had ample opportunity to
prove their RFRA claim, Judge Rapoport stated:
. . . I don't know that there's any burden on either of these defendants to prohibit
them from practicing their religion[.] It just . . . prohibit[s] them from practicing
it in the park because[,] under [the] code of federal regulation[s,] it's clearly
prohibited. What stops you from doing whatever you want to do in the privacy of
home, with friends[?] Nothing. You know, if you're that committed to practicing
your religion[,] getting closer to God by using [the] marijuana [that] you call
a sacrament, what stops you? . . . .
. . . .
. . . To suggest that somehow your religion is seriously impeded because you can't
do it at Independence Park is simply an argument without any basis as far as I'm
Gov't App. 182-84. We read these statements as a factual finding that the regulatory
prohibition on possessing marijuana in the Park does not substantially burden Forchion
and Duff in the exercise of their Rastafarianism.
Defendants do not cite any record evidence that would call Judge Rapoport's finding
into question, and Forchion's own description of Rastafarianism supports it. For
example, Forchion admitted that he could not identify any document suggesting that
Rastafarianism required its adherents to smoke marijuana in the Park. Gov't App.
163. When his lawyer asked him how the criminalization of marijuana possession in
federal parks affected his religious practices, Forchion took issue only with the
government's power to seize marijuana and did not claim that possessing marijuana
in the Park was part of practicing Rastafarianism. See id. at 148-49. Duff had the
opportunity to point out additional ways in which the Regulation burdened his religious
practices, but he did not identify any other burdens. In short, neither Forchion
nor Duff submitted any evidence that Rastafarianism required them to possess marijuana
in the Park.
At most, defendants' testimony suggests that Rastafarians cannot practice their
religion without some freedom to possess marijuana, but the Regulation criminalizes
the possession of marijuana only in national parks. Since the Regulation does not
forbid Forchion and Duff from possessing marijuana outside of national parks, it
creates no impediment to the free exercise of their faith in their homes, their
houses of worship, or other non-federal locations. With so many alternative places
to practice Rastafarianism, the ban on marijuana possession in national parks does
not force Forchion and Duff to choose between abandoning their faith and facing
criminal prosecution. Thus, Judge Rapoport did not clearly err in finding that the
Regulation did not substantially burden their religious beliefs.
Glossing over the record evidence, Forchion and Duff cite three appellate decisions
for the supposed legal principle that RFRA permits Rastafarians to possess marijuana
on federal lands. None of those cases, however, stands for so sweeping a proposition.
To the extent that they are at all helpful to Forchion and Duff, those decisions
are distinguishable from this case.
In United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996), three Rastafarians
were convicted of simple possession of marijuana and other offenses, including conspiracy
to distribute marijuana and distribution of marijuana. The defendants argued that
RFRA permitted them to possess and use marijuana for religious purposes, but the
district court, applying pre-RFRA precedent, repeatedly refused to allow them to
present that defense to the jury, even though it found that "the challenged
law substantially burdened the free exercise of the Rastafarian religion."
Id. at 1557. On appeal, the Ninth Circuit held that, having identified
a substantial burden on religion, RFRA required the district court to consider whether
the government had selected the least restrictive means to advance a compelling
interest. Since the district court did not perform that second step of the RFRA
analysis, the court of appeals reversed the defendants' simple possession convictions
and remanded the case for another trial where defendants could present their RFRA
defense. See id. at 1559.
While Bauer certainly recognizes the possibility that Rastafarians may
be able to establish a RFRA defense to charges of simple possession, it does not
hold that Rastafarians are free to possess marijuana wherever they choose. Indeed,
Bauer did not even hold that the criminalization of marijuana possession always
substantially burdens Rastafarian practices. No party challenged the district court's
factual finding on that point, so the court of appeals had no occasion to consider
the issue. In short, the magistrate judge's finding that the Regulation does not
substantially burden the exercise of Rastafarianism is not inconsistent with the
Ninth Circuit's decision in Bauer.
A few years after Bauer, the Ninth Circuit held that a Rastafarian could
not assert a RFRA defense to a charge of importing a controlled substance into Guam.
See Guam v. Guerrero, 290 F.3d 1210, 1222-23 (9th Cir. 2002). Satisfied
that "Rastafarianism does not require importation of a controlled substance,"
id. at 1223, the court of appeals concluded that the statute at issue did
not substantially burden the defendant's right to freely exercise his religion and
that, therefore, RFRA provided no defense to the importation charge. Apart from
a brief discussion of Bauer, Guerrero does not address the availability
of a RFRA defense to a charge of marijuana possession, so it is inapposite to this
Finally, Forchion and Duff cite O Centro Espirita Beneficiente Uniao do Vegetal
v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (en banc), cert. granted,
125 S. Ct. 1846, 161 L. Ed. 2d 723 (2005) [hereinafter UDV]. In that case, UDV members
sought an injunction to prevent the United States from "relying on the Controlled
Substances Act . . . to prohibit the sacramental use of hoasca." See id.
at 974-75. [Footnote 12] Although the Government opposed the request for an injunction,
it "did not dispute . . . that [the law] imposed a substantial burden on the
UDV's sincere exercise of religion." Id. at 1004. The district court
ultimately granted the injunction, and the Government appealed. The procedural and
substantive issues that UDV raised deeply divided the Tenth Circuit, but none of
the judges' opinions analyze whether federal law substantially burdened the UDV
because the Government had already conceded that it did so. Since UDV simply does
not discuss whether criminalizing the possession of controlled substances substantially
burdens religions that use those substances sacramentally, it offers no support
for defendants' argument that criminalizing marijuana possession substantially burdens
To sum up, none of the cases on which Forchion and Duff rely suggest that RFRA creates
a right for Rastafarians to possess marijuana on federal lands. While some Rastafarians
eventually may establish a RFRA defense to a charge of marijuana possession in a
national park, Forchion and Duff have failed to do so in this case because they
did not prove that the Regulation substantially burdens the exercise of Rastafarianism.
We shall, therefore, affirm their convictions.
In addition to the challenge to their convictions, Forchion and Duff also contend
that some of their conditions of probation violate their right to practice Rastafarianism.
Specifically, they take issue with the conditions that prohibit them from (1) possessing
or using controlled substances [Footnote 13]; (2) frequenting places where controlled
substances are used illegally [Footnote 14]; and (3) associating with people who
are engaged in criminal activity or who have been convicted of a felony (without
permission from a probation officer). [Footnote 15] Defendants also challenge the
conditions that require them to (4) permit the probation officers who visit their
homes to seize "contraband" in plain view [Footnote 16]; (5) submit to
substance abuse testing [Footnote 17]; and (6) participate in substance abuse treatment.
[Footnote 18] See Gov't App. 41-42, 47-48. 19 According to Forchion and Duff, these
six conditions of probation burden their exercise of Rastafarianism in violation
of both the Free Exercise Clause and RFRA.
Judge Rapoport did not consider whether the six conditions at issue violate the
First Amendment and/or RFRA. Moreover, because proceedings before him terminated
as soon as he had imposed those conditions, Forchion and Duff have not had any opportunity
to introduce evidence to support their constitutional and statutory claims. We believe
therefore that the most prudent course is to vacate defendants' sentences and remand
this matter to the magistrate judge for further proceedings.
On remand, the magistrate judge should address the thorny constitutional [Footnote
20] and statutory questions that the six conditions raise, if he intends to reimpose
them. Of course, if he intends to modify defendants' sentences to alleviate any
potential burden that the conditions could place on the exercise of Rastafarianism,
the magistrate judge need not dwell on many of these issues. [Footnote 21]
Forchion and Duff maintain that Rastafarians are free to smoke marijuana in national
parks, but the First Amendment does not guarantee any such right. To the extent
that RFRA creates a potential defense to the possession charges of which they were
convicted, Forchion and Duff failed to establish that defense because they did not
prove that the criminalization of marijuana possession in Independence National
Historical Park substantially burdens the exercise of Rastafarianism. Though their
failure to establish a RFRA defense requires us to affirm their convictions, we
shall vacate their sentences and remand this case for further proceedings because
the magistrate judge did not consider whether six of the probation conditions that
he imposed violate the Constitution and/or RFRA.
An appropriate Order follows.
AND NOW, this 22nd day of July, 2005, upon consideration of the appellants' and
appellee's briefs, the appellants' replies, and Forchion's motion for evidentiary
hearing and funds for expert religious witness (docket entry # 37), and in accordance
with the accompanying Memorandum, it is hereby ORDERED that:
1. Forchion's motion for evidentiary hearing and funds for expert religious witness
is DENIED WITHOUT PREJUDICE to its reassertion before the magistrate judge [Footnote
2. The convictions of Edward R. Forchion and Patrick Duff are AFFIRMED;
3. The sentences of Edward R. Forchion and Patrick Duff are VACATED;
4. This case is REMANDED to the Honorable Arnold C. Rapoport for further proceedings
consistent with our Memorandum;
5. Paragraph 2 of our Order of January 7, 2005 (docket entry # 19) and paragraph
6 of our Order of January 18, 2005 (docket entry # 21) are VACATED; and
6. The Clerk shall CLOSE this case statistically.
BY THE COURT:
Stewart Dalzell, J.