UDV Church decision and its impact on
sacramental cannabis usage
Implications of UDV Church ruling on sacramental cannabis by Tom Brown
To all our relations.
Greetings in the name of the most high, Jah Rastafari, ever faithful, ever sure, Jah Rastafari.
One Love Brethren.
Give thanks and praises for Jah the most high has delivered the victory. Greetings my Brethren on this day of Joy and Thanksgiving. Forevermore this day will be held sacred to all and sundry of the faith of Jah. Jah Rastafari!!!
Please go to these sites and print out the decisions of the federal court there.
http://www.kscourts.org/ca10/cases/2003/09/02-2323.htm
http://www.kscourts.org/ca10/cases/2002/12/02-2323.htm
What the Brethren will find is this. The UDV church of Sante Fe, New Mexico must be issued a liscense from the federal Drug Enforcement Agency to import and distribute hoasca tea. This tea is their sacrament. This tea contains DMT (dimethyl tryptomine) which is a botanical similar to LSD. This is a Schedule I drug according to federal authorities. The UDV Brethren obtain their tea from Brazil in 50 gallon drums. They use the tea in religious ceremonies. The founder of the Sante Fe church is Jeffrey Bronfman. Bronfman is one of the Seagrams distillary heirs. He was a major funder of Winnabego medicine man Ruben Snake in Ruben's fight for the Religious Freedom Restoration Act of 1993.
In addition, in the first decision of December 12, 2002, the Tenth Circuit mentions United States v. Brown, 72 F.3d 134, 8th Circuit 1995. This is the unpublished decision that denied Rev. Tom Brown, the InI, of Our Church of Antioch, Arkansas, the protections of the Religious Freedom Restoration Act of 1993 (42 U.S.C. sec. 2000 bb, cc et al) at trial. The significance of this is immence.
Allow an explanation. The federal courts make rulings. When a ruling is about a new law or a new interpretation of an old law, the court publishes the ruling in the federal law records. The records of the district courts are in the Federal Supplement (F.Supp., F.Supp.2d, F.Supp.3d); of the federal circuit courts of appeals in the Federal Reporter's (F., F.2nd, F.3d); and of the Supreme Court in the Lawyers Edition (L.Ed., L.Ed.2d,). The number preceeding the letters is the volume of the set and the number after the letters is the page number that the decision begins on. So my case is reported in the 72nd volume of the Federal Reporter 3rd collection, on page 134, and this is a report from the 8th Circuit Court of Appeals. Note that this is a report and not a publication. What is the difference?
Well, if you look up my case you will find that it is simply part of a table of cases reported which gives no explanation about what the court did or what the issues raised to the court were. Now, you may ask, why would the district court not want to publish its decision in my case in the Federal Supplement, and why would the 8th circuit not want to publish my case in the Federal Reporter? That is a very good question.
You see, I am, and was in 1994, a liscensed minister of God who is registered here in Washington County Arkansas as a minister empowered to perform marriage cerremonies, burials, etc. I am a member and first CEO of Our Church Inc., a religious non-profit organization of the State of Arkansas, operating openly in Washington County as a church organization. The members of Our Church of Antioch (aka as First Church of the Magi) openly grew 435 marajuana plants and 3 peyote plants on the church property located on Antioch Road in South West Washington County, Arkansas in 1994. I was arrested for that and submitted to trial in the federal court at Fayetteville, Arkansas.
At that trial, the federal judge named Franklin Waters was exposed in Arkansas State Police documents as a co-conspirator with Don Tyson (of Tyson Chicken) in smuggling cocaine in the the US back in the 1970's. At that time, Waters was a private attorney working with Jim Blair on the Tyson account. Subsequently, Ronald Regan appointed Waters as Chief Judge of the Federal Courts of the Western District of Arkansas - where the Regan and the CIA were smuggling cocaine to fund the Contras. Waters refused to recuse himself (to disqualify himself from the case upon my request) even though I had been picketing his federal courthouses with signs stating that "George Bush Smuggles Crack for the Contra's". I stated that his background put him in conflict with my case because if I won the CIA would no longer be able to sell drugs for a profit since Our Church would give them away for free.
Waters refused to recognize the 5 federal cases that had been published interpreting RFRA by the time of my arrest in August of 1994. Two of those cases originated in the 8th circuit of which Waters court is a part. That is important because a federal judge is obligated by law to recognize and follow the published decisions of his own circuit - and empowered to rule differently from other circuits - when he explains the difference and admits to the previous rulings. Waters did none of these. In this case, the judge clearly ruled in violation of law, in violation of precedent and procedure, and in "plain error". If Waters had admitted to the RFRA precedents, he would have been forced to give me a fair trial which would have meant that the jury would have decided whether or not marajuana hurts you or not. Even in 1994 the federals could not count on a Washington County jury to go that far.
So, I was denied due process at trial, the jury never heard any evidence that marajuana hurts you or that the use of marajuana by church members would necessarily hurt the public health and welfare. Because the jury never saw any evidence from the government about that, and because Waters refused to allow me to present any of that evidence, InI stand as a factually innocent person convicted where the jury never saw evidence or guilt and/or innocense due to the incorrect ruling of the judge. Because of those circumstances, another federal judge has the power to overturn that conviction and grant a new trial.
But, why would any federal judge want to open that can of worms? The answer is because other federal courts are now responding to the unpublished decision in my case, publishing those decisions, and bringing my case to light even though the trial judge and the appelate judges conspired to conceal their treason by not publishing the first case in US history of a legally incorporated church growing marajuana and peyote openly in religious exercise. Because other federal courts are in fact violating their own rules to not consider unpublished opinions and publishing decisions that mention the unpublished decision, the case is being brought to light and the 8th Circuit Court of Appeals is being held up to ridicule and is being brought into disrepute. It gets to be the case where it is worse to continue the coverup then it is to admit it and put it behind them.
So, InI am now beginning the subsequent appeal which will require the local federal judge to rule on the question - because the 8th Circuit is being brought into disrepute by other federal courts.
For all others, take heart and joy in the majesty of the works of Jah. Two federal decisions in the 9th Circuit, and now this decision in the 10th Circuit rule that the federal drug laws are subject to the fact finding process described in RFRA. As you will see in these decisions cited above and below, the fed's simply cannot prove that using a psychoactive plant in religious ceremonies will endanger public health and welfare in any way that cannot be controlled with the public intoxication laws. They can't take the wine away from the church, they can only bust the drunk driver and not provide an exemption for drunk driving simply because the driver got drunk at church. The church keeps the wine and the drunk driver pays for endangering the public safety on the highway.
So my Brethren, it is time to praise the wonders of Jah, to see for ourselves that the power of the Holy Spirit of Jah is evident in our time and place for all to see and overstand in each their own way. So many have fallen in this war, and so many of our Brethren remain persecuted in prisons and the highways and byways of our time. But Jah has provided a way. Bob Marley and Peter Tosh and so many more suffered anb died so that we can walk in the light of Day with all arrayed openly for the Nations to see and appreciate. So take the time now my Brethren, to offer thanksgiving and hossanas for all those whose pain and sufferation have paved this road we trod with Jah.
InI offer the following for your consideration:
To all our relations.
Greetings in the name of the most high, Jah Rastafari, ever faitnbful, ever sure, Jah Rastafari.
One Love Brethren.
Thanks for the call this morning Ras Makhana, I really appreciate your keeping me up to speed on your case. Here is my analysis of our points:
1. U.S. v Jefferson, 175 F.Supp.2d 1123 (N.D.Ind. 2001). As we discussed, this case is used to support the 10th Circuit stay of the district court order to the DEA to provide an import liscence to the UDV Church for importing Hoasca tea (contains DMT which is like a 4 hour LSD trip when taken as a tea and is a 20 minute LSD trip when smoked or injected as a chemical). (See docket no.112, page 6 of the UDV case). This case is bogus for the following reasons.
a) After "Isreal" admits smoking marajuana "all day, every day" the judge writes, "In its brief, the Government contends that smoking all day every day is abusive but cites no authority or evidence to support its contention. However, the court's research shows that Rastas often engage in 'grounding' rituals whee 'a few Rastas gather to smoke ganja spliffs or to draw the chalice and to reflect on their faith or on any current historical event that impinges on their lives. . . As a practical matter, the Court is in agreement with the Government that smoking marajuana at religious rituals all day every day appears abusive." (page 1128 - 29)a
Note that the judge (or so called "Court") admits that the government had no evidence that the use a marajuana all day every day is abusive, deleterious to health or mental capacity. In fact the judge admits that the purpose of the 'grounding' ritual is to facilitate communication about faith issues and life problems. Where is the evidence that the Rasta is impaired by the smoking? If these Rasta's are impaired that should be easy to show in property crime and violent crime rates, insanity rates, low income rates, and in other easily documented ways. But this judge dosen't need evidence, he dosen't even need the prosecutor, he does all this himself. Don't ask me where the defense attorney is in this, the "Court" never mentions any argument, evidence or motion made by the defense except an off the cuff remark to the Isreal person to pay attention to the attorney.
b) Note that the judge says that the fact that the government has no evidence is not a problem because the judge himself has done the research. At page 1130, the judge reports the introductory sections of the drug statutes which state that the drug laws are enacted to protect the public from drug abuse. So we know that the judge knows about the drug statutes, and he mentions section 801 and then section 812. The judge does not mention section 811 and this is why.
21 USC section 811 (a) states that "Rules of the Attorney General under this subsection shall be made on the record after opportunity for a hearing pursuant to the rulemaking proceedures prescribed by subchapter II of Chapter 5 of Title 5. Proceedings for the issuance, amendment or repeal of such rules may be initiated by the Attoney General (1) on his own motion, (2) at the request of the Secretary, or (3) on the petition of any interested party."
If the judge had read section 811, which is in between section 801 and 812 which the judge says he did read, then the judge would have found out that the rulemaking procedure has been made for marajuana and the official results are in - in 1988.
The first line of the DEA Administrative Law Judge ruling on the rescheduling of marajuana is, "This is a rulemaking pursuant to the Administrative Proceedure Act, 5 U.S.C. section 551 et seq. to determine whether the marijuana plant considered as a whole may be lawfully transferred from Schedule I to Schedule II of the schedules established by the controlled Substances Act, 21 U.S.C. section 801 et seq."
On pages 56 thru 68 of the report, DEA Administrative Law Judge Frances Young reports on "Accepted Safety for use Under Medical Supervision".
On page 57 he states that, "Estimates suggest that from twenty million to fifty million Americans routinely, albeit illegally, smoke marijuana without the benefit of direct medical supervision. Yet, despite this long history of use and the extraordinarily high numbers of social smokers, there are simply no credible medical report to suggest that consuming marijuana has caused a single death. . . A smoker would theoretically have to consume nearly 1,500 pounds of marijuana within about fifteen minutes to induce a lethal response." and on and on and on.
Why is the federal judge in the Jefferson case ignoring the federal judge's decision (to reschedule marajuana for medical use), made by the person who is the governments specialist in determining the toxicity of a drug ?
Why is the federal judge in the Jefferson case ignoring the legally mandated fact finding process used to determine a drugs toxicity?
Why is the federal judge in the Jefferson case ignoring the findings of fact of that legally mandated process where those findings of fact support the alleged "research" the federal judge in the Jefferson case says that he did?
Obviously, if the federal judge admits that the rescheduling report exists and is the product of the drug law the judge is supposed to enforce, then he won't be able to violate Iareal for pot smoking - maybe for not having a job, for not paying his fine, or for not paying his child support, but not for smoking pot. So why does this federal judge in the Jefferson case want to violate Isreal for pot smoking when he has so many other excuses ?
c) On page 1129 the judge says, "At this point the burden shifts to the Government to show that the challenged action furthers a compelling state interest in the least restrictive manner. The Government gives three reasons why it has a "compelling interest" in regulating Israrl's marajuana consumption: (1) the government has a health and safety interet in prohibiting Isreal's use of marajuana; (2) the government has a compelling interest in uniformly enforcing drug laws; (3) the government has a compelling interest in rehabilitating Isreal and making him a productive member of society."
The judge then reports the introduction to the drug statute and the part of the drug law that dictates that a drug placed in Schedule I must be of high abuse. Based on the wording of the drug statute alone, without any evidence or argument that the drug statute acurately reflects what is happening with the marajuana use of Israel, the judge finds that the government has proven the compelling interest issue. Note, that the fact of a law is not evidence by definition. The fact that murder is against the law is not evidence that any person committed murder. This is called circular reasoning and is by definition faulty and illegal - but tell that to the judge, right?
d) On page 1131 the judge reports that the RFRA states that Congress intended that it "expects that the courts will look to free exercise cases decided prior to Smith for guidance in determining whether the free exercise of religion has been substantially burdened and the least restrictive means have been employed in furthering a compelling governmental interest."
OK, but RFRA states that the fact finding process of Sherbert and Yoder must be employed to determine compelling interest. The cases the judge mentions for "guidance" are all Leary derived cases. As I mentioned in a previous letter, the Leary case judge specifically rules that the Sherbert tests will not be applied to the "contraversial question of whether or not marajuana is relatively harmless." So, since the Jefferson judge depends on cases made irrelevent by RFRA, his decision is itself irrelevent under RFRA. Ya, I know, tell it to the judge.
e) On page 1132 the judge states that, "The Court finds that the condition of supervised release is the least restrictive means of accomplishing the objective of enforcing the drug laws and protecting the health and public safety of citizens. Any judicial attempt to carve out an exemption willl result in significant administrative problems for the probation office and open the door to myriand claims for religious exceptions."
Note that the judge already reported that " he shall not purchase, posses, use, distribute, or administer any narcotic or other controlled substance. . .except as prescribed by a physician." (page 1125) OK, if Marinol (synthetic THC in sesame seed oil in a gelitan capsule) is prescribed then it's OK? Well if its OK to use Marinol when prescribed, why is that exception to the criminal statute not a "significant administrative problem for the probation office".? In fact, why are prescribed opiates etc. not a problem?
See, as soon as you rationally look at this decision it is bullshit and lies. But when you have a defense attorney who wants to cooperate with the judge to screw you, well no need to introduce facts or argument to mess that up, right?
f) In addition to all this, you may recall City of Indianaplois v. Edmund, 121 S.Ct. 447 (2000). In this case, the Supreme Court rules that drug checkpoints are illegal searches because "The detection and punishment of almost any criminal offense broadly serves the safeth of the community, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses however, is society confronted with the type of immediate, vehicle bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate." So there is the ruling that the drug laws specifically, do not in and of themselves, demonstrate a compelling interest on the part of government for enforcement.
So do you think that this federal judge in the Jefferson case in Ft. Wayne, Indianna is so overburdened by his work that he just didn't know about the City of Indianappolis ruling that happened just down the road in his own state of Indianna? Gee, its too bad this overburdened judge couldn't rely more on defense attorneys and prosecutors to do the legal and factual research for him, then maybe he could read about what the Supreme Court has to say about the drug laws as enforced in his own state.
When I spoke to Roy Habor of the Portland, Oregon Hoasca using church, he expressed abject fear at going to the Supreme Court to review compelling interest toi enforce the drug laws under RFRA. Maybe when I spoke to him he was also ignorant of the Supreme Court having already ruled that enforcement of the drug laws is not a compelling interest on the part of government - that the drug laws are only ordinary criminal statutes which bear enforcement no more than any other criminal statute.
2. See City of Boerne v. Flores, 138 l.Ed.2d 624 (1997) for the definition of the sweep of individual right under RFRA (pages 646 thru 649). Scalia writes, "RFRA is not so confined. Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. . . Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise." (at page 646). "Requireing a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving tht interest is the most demanding test known to constitutional law." (at page 648)
3. As to your attorney in Guam, again I reccomend that you continue to make demands of him in writing and report any deviation from your orders to the court by way of motion titled, "Notice to the Court - Attorney failure to represent defendants expressed wish for religious defense under 42 U.S.C. sec. 2000 bb,cc et al." That way it is a part of the record for appeal.
4. As to the attorney on your California case, yes you should protest his failure to move for return of your plants and lights, you should make that protest by way of motion to the court after you have served him with registered mail notice and he has refused to comply. You should specifically mention that you intend to file a complaint to the California Bar Association citing him for failure to represent. A few of those complaints and he will be out of the lawyering job and good riddence.
5. As to your Guam case, you also should introduce the National academy of Science report on Medical Use of Marijuana as factual evidence to support your religious use. You can find that at:
www.nap.edu/books/0309071550/html/
OK, I just checked that out myself and it works.
6. Also, get your attorney on to the UDV case and make a written order for him to either file similiar motions or to be able to explain why he cannot. They are riding on your wake at the Ninth Circuit, you take a spin on theirs. As to the evidentiary hearing in Guam, the trial court has no option to give that to you. You should subpeona a DEA representative who is legally capable to introduce and explain the rescheduling petition decision. You should subpoena a person from the White House Drug Czars office to introduce and explain the National Academy of Sciences report as it was the Drug Czar under Clinton Gen. Barry McCaffry that ordered that to be done, or a NAS rep to authenticate and provide expert testimony. Remember, the government must prove that your carrying the marajuana in the airport caused a palpable threat to public health and safety - by being in the airport and in your backpack.
7. Remember that the Religious Land Use and Incarcerated Prisoners Act is an extention of the statutory right of free exercise and that the definitions of religious use and substantial burden are defined there and are applicable to your case. Anyone who tries to tell you different make then detail why and I will blow that out of the water for you.
8. And remember that it is the Welsh decision that defines religious use under the First Amendment. Welsh, II v. United States, 90 S.Ct. 1792, 1798 (1970), where an a-theist is recognized as religious exercise in avoiding the draft because he is motivated by a "strong moral commitment". This is the standard to invoke 1st amendment protections and it was made long ago and never overturned.
Good luck my Brother. It is so good to hear form you and be able to reflect on these issues with you. This is really helping me to refine my own appeal here. Thanks again.
One Love, revtombrown
______________________________________________
(And This Also)
Hi, Dennis.
I'm not sure as to which postings you refer from all the email responses to
my initial message. I'm planning to post my original email about my
conversation with Dan Abrahamson, along with Tom Browns comments from your
earlier forwarded message as a discussion online at:
http://www.equalrights4all.org/religious/religious.htm
The citations he makes are fascinating, and there is a lot of food for
consideration and potential legal arguments contained therein, so I think it
is valu! able for visitors to the site to peruse. Having read through Tom's
position, though I still don't see where he pins his religious defense on
the smuggling charge. All his points about the RFRA seem to be reasonable
(to a non-lawyer), but Benny would not be appealing those points, which the
court gave him, he would have to appeal the smuggling conviction. That is
why at least one attorney has suggested that it might be better to leave
sleeping dogs lie.
If Tom could clarify how he sees the smuggling defense being won, it would
help me better understand the value of filing an appeal. Tom wrote that:
> Since the Ninth's decision in your case and Bauer does not preclude factual
> challenge to the smuggling, sales, money laundering, etc. statutes, the
> government is still in the position to have to defend the law by showing the
> threat to public health and safety caused by you having carried marajuana in
> your back! pack.
In my understanding, the court did not extend any religio us protection to
those charges, and the facts seem to favor their position that he was
involved in the smuggling aspect, at least (I don't know all the particulars
of the other issues). How would this argument be extended that the smuggling
of marijuana was essential to his religious use and freedom?
> it seems inconceivable that the marajuana smuggling statute could be upheld in
> your case. Why?? Because the first step in proving threat to public health and
> safety is to prove the toxicity of marajuana to the user. Then they must prove
> that the intoxicated user is further a threat to public health and safety.
I haven't seen the courts apply those standards to any other cases, or
cannabis users would never be convicted; we could just show that cannabis
has known medical use, commonly accepted medical value, and its "high
potential for abuse" is predicated on its being illegal, so there fore
legalizing herb for ad! ult use would eliminate that. Hence it should not be
in Schedule I, then it should be forced down the line probably off schedule
altogether. I'm not saying I don't agree with you, I'm just not sure how it
can be forced before a jury when medical necessity cannot.
Plus this whole argument only extends to federal territories, so its general
utility is less than comprehensive. Remember, I'm on your side here; but it
is courts and juries that we need to convince.
-- Chris Conrad <chris@chrisconrad.com> 510-215-8326
