UNITED STATES OF AMERICA v. EDWARD R. FORCHION, et al.

NO. 04-949-ALL

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. 7, 2007)

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

OPINION

MEMORANDUM

Dalzell, J.

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.

Factual Background

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.

Footnote 1: "Rastafarianism is a religion which proclaims the divinity of Haile Selassie, former Emperor of Ethiopia, and anticipates the eventual redemption of its adherents from the 'Babylon' of white oppression." Steele v. Blackman, 236 F.3d 130, 132 n.2 (3d Cir. 2001). Further,

Standard descriptions of the religion emphasize the use of marijuana in cultic ceremonies designed to bring the believer closer to the divinity and to enhance unity among believers. Functionally, marijuana - known as ganja in the language of the religion - operates as a sacrament with the power to raise the partakers above the mundane and to enhance their spiritual unity.

Id. (quoting United States v. Bauer, 84 F.3d 1549, 1556 (9th Cir. 1996)).

Footnote 2: Located within the Park, the Liberty Bell Center is situated in the block bounded by 5th, Market, 6th, and Chestnut Streets in Philadelphia. Independence National Historical Park is part of the national park system. See 16 U.S.C. §§ 407m-407s.

Footnote 3: Each of these dates was the third Saturday of a month. Rastafarians observe the sabbath on Saturdays. Gov't App. 156-57.

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.

Footnote 4: For background on the significance of that time of day to members of the drug culture, see http://en.wikipedia.org/wiki/420_(drug_culture).

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 5: See 36 C.F.R. § 2.35(b)(2) [hereinafter the "Regulation"]; see also 21 U.S.C. § 812 (identifying marijuana as a Schedule I controlled substance). Because possession of a controlled substance is punishable by "imprisonment not exceeding 6 months," 36 C.F.R. § 1.3(a), it is a "Class B misdemeanor" and a "petty offense," 18 U.S.C. § 3559(a)(7); 18 U.S.C. § 19.

Footnote 6: See 36 C.F.R. § 2.32(a)(1). Interfering with agency functions is a Class B misdemeanor and a petty offense. See supra note 5.

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 182-84.

Footnote 8: See 42 U.S.C. §§ 2000bb to 2000bb-4.

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.

Footnote 9: Although Judge Rapoport's remarks at the hearing could suggest that he intended to sentence Duff to only 6 months' probation, see Gov't App. 240-43, the written judgment confirms that Duff's sentence actually included 12 months' probation, see id. at 47.

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.

Analysis

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).

B. Convictions

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.

(b) Exception.

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]

Footnote 10: In City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997), the Supreme Court held that Section 5 of the Fourteenth Amendment did not authorize Congress to apply RFRA to the states. The courts of appeals appear split on the question of whether Congress could constitutionally apply RFRA to the federal government. Compare Guam v. Guerrero, 290 F.3d 1210, 1220-21 (9th Cir. 2002) (holding that RFRA is constitutional as applied in the federal realm); Kikumura v. Hurley, 242 F.3d 950, 958-60 (10th Cir. 2001) (same); Christians v. Crystal Evangelical Free Church (In re Young), 141 F.3d 854, 858-59 (8th Cir. 1998) (same) with United States v. Indianapolis Baptist Temple, 224 F.3d 627, 629 n.1 (7th Cir. 2000) (recognizing "doubt" whether RFRA could be constitutionally applied to the federal government); La Voz Radio de la Communidad v. FCC, 223 F.3d 313, 319 (6th Cir. 2000) (expressing "doubt" that RFRA is constitutional as applied to the federal government). Without mentioning the unsettled state of the law, the parties assume that RFRA applies to the federal government. Given their readiness to accept RFRA's constitutionality in this context, we shall assume that RFRA does apply to the federal government.

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]

Footnote 11: Before Judge Rapoport, and in their briefs, the parties cite the three-prong test of United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996), as the relevant legal standard that a claimant must meet before the Government bears any burden of proving that a law is the least restrictive means of advancing a compelling interest. Under that test, a claimant must establish by a preponderance of the evidence that the law "(1) substantially burden[s], (2) a religious belief rather than a philosophy or way of life, (3) which belief is sincerely held" by the claimant. See id. at 1482. Though the Meyers test may not be inconsistent with the law of this circuit, we prefer not to apply it because our Court of Appeals has not adopted it and the law of this circuit offers sufficient direction for us to resolve this appeal without seeking guidance from other circuits.

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 concerned.

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 case.

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 Rastafarians.

Footnote 12: UDV, "a syncretic religion of Christian theology and indigenous South American beliefs, was founded in Brazil in 1961 by a rubber-tapper who discovered the sacramental use of hoasca (the Portuguese transliteration of ayahuasca) in the Amazon rainforests." O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170, 1174 (10th Cir. 2003). "Hoasca is made by brewing together two indigenous Brazilian plants," one of which contains DMT, a Schedule I controlled substance. See id. at 1175.

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.

C. Sentences

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.

Footnote 13: Standard Condition # 7. This condition is a mandatory condition of probation pursuant to 18 U.S.C. § 3563(a)(3), (5).

Footnote 14: Standard Condition # 8.

Footnote 15: Standard Condition # 9.

Footnote 16: Standard Condition # 10.

Footnote 17: Second Special Condition. This condition is a mandatory condition of probation pursuant to 18 U.S.C. § 3563(a)(5).

Footnote 18: Second Special Condition.

Footnote 19: Forchion and Duff also object to an alleged condition that they not "participate and/or attend any marijuana related events/functions" and not "enter[] the Independent [sic] National Park." See Appellants' Brs. at 15. Judge Rapoport imposed no such condition. While he required them to "abide by all the rules and regulations of the Park Service," including those requiring permits, see Gov't App. 42, 48, that condition did not prevent them from entering the Park or from holding additional gatherings, so long as they comply with the standard permit requirements.

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]

Footnote 20: Smith does not absolve the magistrate judge of responsibility for considering any potential constitutional claims because sentences are not neutral laws of general applicability. Sentencing involves individualized decision-making similar to the determinations to which appellate courts apply strict scrutiny. See Smith, 494 U.S. at 882-85, 110 S. Ct. 1602-03 (discussing Supreme Court cases that applied the Sherbert test to invalidate government actions); see also Blackhawk v. Pennsylvania, 381 F.3d 202, 206-09 (3d Cir. 2004) (summarizing recent Free Exercise jurisprudence of the Third Circuit).

Footnote 21: Four of the six challenged conditions are not mandatory, so the magistrate judge may decline to reimpose them, so long as his decision would not be an abuse of discretion. Under 18 U.S.C. § 3563(a) -- a neutral law of general applicability -- the two remaining conditions are mandatory, so the magistrate judge must reimpose them unless he first finds that RFRA supersedes § 3563 (a). Compare United States v. Valrey, No. 96-549Z (W.D. Or. Feb. 22, 2000) (modifying conditions of supervised release to permit a Rastafarian to use and possess marijuana exclusively in connection with his religion) with United States v. Israel, 317 F.3d 768 (7th Cir. 2003) (affirming revocation of a Rastafarian's supervised release after he violated his release conditions by using marijuana).

Conclusion

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.

ORDER

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 1];

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.

Footnote 1: Since Forchion did not make this request of the magistrate judge, it would be inappropriate for us to consider it for the first time on appeal.

BY THE COURT:

Stewart Dalzell, J.