UNITED STATES OF AMERICA, Plaintiff, v. RAYNARD EARL VALREY, Defendant

NO. CR96-549Z

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

February 22, 2000, Decided
February 22, 2000, Filed

COUNSEL: For RAYNARD EARL VALREY, defendant: Michael Filipovic, Robert Charles Owen, FEDERAL PUBLIC DEFENDER'S OFFICE, SEATTLE, WA.

JUDGES: THOMAS S. ZILLY, UNITED STATES DISTRICT JUDGE.

OPINION BY: THOMAS S. ZILLY

OPINION

ORDER

This matter comes before the Court on the Parties' Joint Motion to Determine Defendant's Terms of Supervised Release. See docket no. 50 (minutes of revocation hearing). Defendant, a Rastifarian, has tested positive for the presence of marijuana. Defendant invokes the First Amendment of the United States Constitution and the Religious Freedom Restoration Act of 1993 and seeks to modify the terms of his supervised release. Having fully considered the issue, the Court MODIFIES the conditions of the defendant's supervised release.

BACKGROUND

On March 27, 1997, after a plea of guilty to possession of an unregistered firearm. Mr. Valrey was sentenced to a term of thirty months imprisonment followed by three years of supervised release. On June 16, 1999. Mr. Valrey's release began.

On August 4, August 20, September 17, October 4 and November 8, 1999, Mr. Valrey acknowledged Probation that he had used marijuana in the days immediately preceding the urine tests administered on these dates. Mr. Valrey tested positive for the presence of marijuana on each test. The government alleges that Mr. Valrey violated the terms of his supervised release by submitting urine specimens which tested positive to the presence of marijuana.

On December 20, 1999, a hearing was held concerning whether Mr. Valrey's use of marijuana as part of his practice of the Rastafarian religion warrants revocation of his supervised release. The parties stipulated to the following facts:

1. Rastafarianism is among the religious groups sufficiently stable and distinctive to be identified as one of the existing religions in the United States and is thus a recognized religion within the meaning of the First Amendment to the United States Constitution and the Religious Freedom Restoration Act.

2. Rastafarianism emphasizes the use of marijuana in ceremonies designed to bring the believer closer to the divinity and to enhance unity among believers. Functionally, marijuana operates as a sacrament with the power to raise the partakers above the mundane and to enhance their spiritual unity.

3. Mr. Valrey is a sincere and practicing member of the Rastafarian Religion.

4. Mr. Valrey has indicated that his use of marijuana since being placed on supervised release has been in the context of his practice of Rastafarianism as described above. The government has no information to the contrary.

Stipulation at 1-2 (attached to docket no. 52). The Court accepts the Stipulation of the parties for purposes of this Order.

DISCUSSION

The First Amendment of the United States Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Under the Religious Freedom Restoration Act (RFRA)' a "person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000bb-1(c). The RFRA provides that the government "shall not substantially burden a persons exercise of religion even if the burden results from a rule of general applicability" unless the government demonstrates that application of the burden to the person "(1) is in furtherance of compelling governmental interest." 42 U.S.C. § 2000bb-1. The purpose of the RFRA is "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed 2d 15 (1972), and to guarantee its application to all cases where free exercise of religion is substantially burdened." 42 U.S.C. § 2000bb(b)(1). To satisfy this test, the government must meet the burdens of "going forward with the evidence and persuasion." 42 U.S.C. § 2000bb-2(3).

The Court must determine whether the supervised release condition prohibiting Mr. Valrey from the possession and use of marijuana violates his right to the free exercise of his religion. The fact that this issue is raised in the context of supervised release following Mr. Valrey's conviction and imprisonment does not affect the application of the RFRA. Congress debated and rejected an amendment that would have exempted prisons from the RFRA's stringent test. See Bryant v. Gomez, 46 F.3d 948, 949 & n. 1 (9th Cir. 1995) (citing S. Rep. No. 111, l03rd Cong., lst Sess. §§ V(d) and XI (1993); H.R., Rep. No. 88, 103rd Cong., 1st Sess. (1993)); Stefanow v. McFadden, 103 F.3d 1466, 1471 (9th Cir. 1996) (The RFRA applies to claims of prisoners).

In City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997), the Supreme Court held that the RFRA was unconstitutional insofar as it applies to local and state laws. The Court found that Congress had exceeded its authority under Section 5 of the Fourteenth Amendment. However, the RFRA is still applicable to federal laws. Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 832 [(9th Cir. 1999).

In United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996), cert. denied, 519 U.S. 131, 117 S. Ct. 991, 992, 136 L. Ed. 2d 872 (1997), the Ninth Circuit held that, under the RFRA, it was error to exclude a religious defense to charges of simple possession of marijuana for personal use. Id. at 1559. Bauer requires that Mr. Valrey show, as an initial matter, that he is a member of the Rastafarian religion and that his use of marijuana is part of that religion's practice. Id. Both parties have stipulated to these required facts.

Mr. Vairey must also show that prohibiting him from using marijuana is a substantial burden on his practice of the Rastafarian religion within the meaning of the RFRA. See 42 U.S.C. § 2000bb-1. "Putting substantial pressure on an adherent to modify his behavior and to violate his beliefs" burdens the free exercise of religion, and thus is a substantial burden. Thomas v. Review Bd. of Indiana Employment Sec. Division, 450 U.S. 707, 718, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981); 42 U.S.C. § 2000bb-1. The joint stipulation provides that Rastafarians emphasize the use of marijuana as a means of bringing the believer closer to the divinity and enhancing unity among the believers. Marijuana thus acts as a sacrament for the Rastafarians. In Bauer, the Ninth Circuit impliedly found that prohibition of this sacrament was a substantial burden when it held that the prosecution of a Rastafarian for the personal possession and use of marijuana gives rise to a valid, religious-exercise defense under the RFRA. Bauer, 84 F.3d at 1559. The terms of Mr. Vairey's supervised release, which require him to refrain from using marijuana, places substantial pressure on him to modify his 'behavior in violation of his beliefs as a Rastafarian. Thus, a substantial burdening of Mr. Vairey's free exercise of Rastafarianism has occurred.

Consequently, the government has the burden to prove that restricting defendant's use of marijuana during supervised release (1) furthers a compelling government interest and (2) 'is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b). The government argues that because of the correlation between drug use and criminal behavior, the Court is required by 18 U.S.C. § 3583 to order prohibition of any drug use as a condition of supervised release. See United States v. Blackston, 940 F.2d 877, 886 n. 12 (3rd Cir. 199 1). However, 18 U.S.C. § 3583 is a law of general applicability and was not intended to discriminate against or inhibit a religious practice. See 42 U.S.C § 2000bb-1(a); Bauer, 84 F.3d at 1557-59. The government also argues that this requirement, combined with the ultimate goal of rehabilitating Mr. Valrey, demonstrates a compelling interest in burdening Mr. Vairey's free exercise of his religion by prohibiting him from using controlled substances. However, the government has offered no proof that Mr. Vairey himself is in danger of recidivism as a result of his marijuana use. A contrary argument can even be made' that the devout practice of his religion in conjunction with the other terms of supervised release may help ensure Mr. Vairey's rehabilitation. Therefore, the government has not met its statutorily required burden of evidence and persuasion regarding the "compelling interest" prong of the test.

The government has offered no arguments regarding the "least restrictive means" prong of the test. In contrast, Mr. Vairey argues that five factors will accomplish a less restrictive means of furthering the government's interest. These five factors are: (1) continued self-reporting of marijuana use, (2) regular urine-testing for other controlled substances, (3) monthly reporting, (4) periodic criminal history checks, and (5) compliance with all of the other incidents of supervision. Mr. Vairey argues that these factors are fully adequate to ensure that he is not using any other controlled substances and is achieving the goals of the supervised release. Because the government bears the burden as to this issue but 'declined to address this second prong, the Court finds that Mr. Valrey's suggested factors will accomplish a less restrictive means of furthering the government's rehabilitative interest without burdening Mr. Valrey's exercise of his religion.

The government argues that People v. Peck, 52 Cal. App. 4th 351, 61 Cal. Rptr. 2d 1 (1997), "expressly rejected a similar request" to change the terms of supervised release for a Rastafarian asserting a defense under the RERA. In Peck, the defendant was convicted of the transportation of 28.5 grams of marijuana and possession of marijuana for sale. The court found that permitting him to continue to possess and use marijuana probably would lead him to engage in future criminal conduct.

This case is distinguishable from Peck. Mr. Valrey was convicted of the illegal possession of a firearm, not of transportation and possession of controlled substances for sale. In Peck, the court stated, "Although the use of marijuana as a sacrament is central to the [defendant's religion], defendant was prosecuted not for using marijuana but for transporting a large quantity of it and possessing it for sale. These activities are only related peripherally, if at all, to the practice of defendant's religion." 14. at 360-61. In this case, the parties have stipulated that Mr. Valrey's use and possession of marijuana is in the context of his religious practice. The government argues that Mr. Valrey was smoking marijuana at the time he was arrested and that his use at that time was unrelated to his religious practice. However, there is no evidence currently before the Court supporting this assertion, nor was Mr. Valrey prosecuted for that incident.

The government's final argument is that Mr. Valrey should not be permitted to use marijuana during supervised release because he could not have used marijuana for religious purposes in prison. However, in the context of a Rastafarian on supervised release, prison regulations are not at issue.

CONCLUSION

For the above reasons, the Court MODIFIES the conditions of Mr. Valrey's supervised release. The Court will allow Mr. Valrey's personal use and possession of marijuana exclusively in connection with his practice of his religion. Mr.Valrey shall (1) self-report his marijuana use (affirming that such use is in the context of his continuing participation in the Rastafarian religion), (2) undergo regular urine-testing for controlled substances, (3) report monthly, (4) submit to periodic criminal history checks, and (5) comply with all of the other conditions of supervision.

IT IS SO ORDERED

DATED this 22nd day of February, 2000