C.A. NO IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee-Respondent ROGER CHRISTIE,

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1 Case: , 06/28/2016, ID: , DktEntry: 48, Page 1 of 62 C.A. NO IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee-Respondent v. ROGER CHRISTIE, Defendant-Appellant-Petitioner DEFENDANT-APPELLANT-PETITIONER S PETITION FOR REHEARING EN BANC Circuit Judges Diarmuid F. O Scannlain, Richard C. Tallman, Milan D. Smith Jr. United States Court of Appeals for the Ninth Circuit DEFENDANT-APPELLANT-PETITIONER S PETITION FOR REHEARING EN BANC THOMAS M. OTAKE 345 Queen Street, Suite 600 Honolulu, Hawaii Telephone: (808) Facsimile: (808) Attorney for Defendant-Appellant-Petitioner ROGER CHRISTIE

2 Case: , 06/28/2016, ID: , DktEntry: 48, Page 2 of 62 TABLE OF CONTENTS TABLE OF AUTHORITIES.. ii REASON FOR GRANTING THE PETITION.. 1 CASE HISTORY 2 ARGUMENT.. 6 I. En Banc Review Is Necessary to Address a Matter of Exceptional Importance... 6 A. Reverend Christie s RFRA Motion 6 B. Marijuana Should Not Be Classified as a Schedule I Substance 10 C. Reverend Christie s Motion to Suppress 14 CONCLUSION CERTIFICATE OF COMPLIANCE APPENDIX A: United States v. Roger Cusick Christie, No (Ninth Circuit Opinion, June 14, 2016) CERTIFICATE OF SERVICE

3 Case: , 06/28/2016, ID: , DktEntry: 48, Page 3 of 62 TABLE OF AUTHORITIES Cases Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936 (D.C. Cir. 1991).. 12 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct (2014). 7, 8 City of Boerne v. Flores, 521 U.S. 507 (1997)... 7 Lawrence v. Texas, 539 U.S. 558 (2003) 12 McAllen Grace Brethren Church v. Salazar, 764 F.3d 465 (5 th Cir. 2014).. 8 United States v. Bennett, 219 F.3d 1117 (9 th Cir. 2000). 14 United States v. Blackmon, 273 F.3d 1204, 1207 (9 th Cir. 2001). 15 United States v. Commito, 918 F.2d 95 (9 th Cir. 1990) United States v. Miroyan, 577 F.2d 489 (9 th Cir. 1978). 11 Wisconsin v. Yoder, 406 U.S. 205 (1972)... 7 Statutes 18 U.S.C U.S.C U.S.C U.S.C. 2000bb-1.. 3, 6, 7 D.C. Act ii

4 Case: , 06/28/2016, ID: , DktEntry: 48, Page 4 of 62 Rules Fed. R. App. P Fed. R. Crim. P iii

5 Case: , 06/28/2016, ID: , DktEntry: 48, Page 5 of 62 REASON FOR GRANTING THE PETITION Defendant-Appellant-Petitioner Reverend Roger Christie ( Reverend Christie ) seeks en banc review of this Court s June 14, 2016 Opinion. 1 This Court should review this matter en banc because three of the issues raised in Reverend Christie s appeal deal with matters of exceptional importance. The first issue of exceptional importance raised in Reverend Christie s appeal addresses the district court s denial of Reverend Christie s Religious Freedom Restoration Act Motion ( RFRA Motion ). Reverend Christie contends that the government failed to demonstrate that it had a compelling interest in preventing a risk of diversion of Cannabis to non-adherents, or that this prosecution was the least restrictive means to further that interest. Clearly, whether or not the government violated RFRA, and thus violated a citizen s right to freedom of religion, is a matter of exceptional importance. En banc review is necessary, not only to assure that RFRA was properly addressed in this case, but to also avoid a negative precedent as to how the least restrictive means test is applied in RFRA cases in the future. The second issue of exceptional importance raised in Reverend Christie s appeal addressed Reverend Christie s Motion to Dismiss as the arbitrary and irrational classification of marijuana as a Schedule I substance in the Controlled 1 The Opinion filed in U.S. v. Roger Cusick Christie, No , on June 14, 2016 is attached hereto as Appendix A.

6 Case: , 06/28/2016, ID: , DktEntry: 48, Page 6 of 62 Substances Act violates his Fifth Amendment Substantive Due Process rights. Again, the arbitrary and irrational classification of marijuana as a Schedule I substance, and the effect that has on the due process rights of individuals like Reverend Christie, is a matter of exceptional importance that should be reviewed en banc. Lastly, the third issue of exceptional importance raised in Reverend Christie s appeal dealt with the district court s denial of Reverend Christie s Motion to Suppress and request for a Franks hearing as the wiretap orders, and extensions, were granted based on applications which failed to provide the issuing court with a full and complete statement of the necessity for the wiretapping. As wiretaps involve such a major invasion into the privacy interests of citizens, it is of exceptional importance that they not be issued unless the necessity for such an extreme law enforcement tool is adequately demonstrated. CASE HISTORY Defendants were charged with violations of the Controlled Substances Act, 21 U.S.C. 801, et seq. ( CSA ), arising from their distribution of Cannabis through The Hawaii Cannabis Ministry ( the Ministry ), in the small town of Hilo, on the island of Hawaii. The district court found that Defendants established that these charges substantially burden[ed] the exercise of [Defendants ] sincerely held religious 2

7 Case: , 06/28/2016, ID: , DktEntry: 48, Page 7 of 62 beliefs[,] and therefore that they established a prima facie case for their defense under RFRA, 42 U.S.C. 2000bb-1. See Excerpts of Record ( ER ) 65, 71. The evidence the Christies presented in order to demonstrate the scope, sincerity, religiousity, and substantial burden on the exercise of their sincerely held religious beliefs included their own Declarations (ER ), with supporting exhibits (ER ), and Declarations from expert witness Laurie Cozad, Ph.D. (ER , ). This included documentation proving that Reverend Christie was also a member of the Oklevueha Native American Church. The district court rejected Defendants argument that they had a Sixth Amendment right to a jury determination of these issues, and declined to hold an evidentiary hearing, reasoning that the Declarations Defendants presented were uncontested (ER 62), and that the government provide[d] no contradictory factual evidence (such as expert opinion or percipient witness testimony) challenging these beliefs and Defendants sincerity. ER 61. Since Defendants established their prima facie case under RFRA, the burden shifted to the government to demonstrate that the instant prosecution furthered a compelling governmental interest and was the least restrictive means to do so. The district court held an evidentiary hearing limited to these issues, after once again rejecting Defendants Sixth Amendment right to jury argument. The evidence the government presented included transcripts of consensual recordings of Reverend 3

8 Case: , 06/28/2016, ID: , DktEntry: 48, Page 8 of 62 Christie made by a confidential source and an undercover DEA agent, transcripts of wiretap recordings intercepted from the Ministry telephone and Reverend Christie s cellphone, excerpts from the Ministry s website, and testimony from Jessica Walsh, who worked at the Ministry for approximately fourteen months (January 2009 through March 10, 2010), and Victoria Fiore, who worked at the Ministry for approximately two months (mid-april through mid-june 2009). The district court concluded, based primarily on the testimony of Walsh and to a lesser extent Fiore, that: (1) a significant portion of the Ministry s Cannabis could have been diverted to non-adherents through the Ministry s express procedure, which was: (a) instituted in the Spring of 2009, nine years into the Ministry s existence; and (b) used to distribute personal use amounts to individuals who represented themselves to be Ministry members; (2) the government had a compelling interest in preventing this risk of diversion (ER 90); and (3) this prosecution was the least restrictive means for furthering this interest (ER 94). Therefore, the district court denied Defendants Motion in Limine to Present RFRA Defense ( RFRA Motion ). ER By agreement of the parties, Fiore s direct testimony, and most of Walsh s direct testimony, was presented by Declaration. The government also presented a third witness, Edwin Buyten, but he had no knowledge of the Ministry s operations or the express procedure, and his testimony was not a basis for the district court s decision. Likewise, the undercover and confidential source recordings were made in 2008, prior to the institution of the express procedure. 4

9 Case: , 06/28/2016, ID: , DktEntry: 48, Page 9 of 62 Defendants entered conditional guilty pleas under Rule 11(a)(2), Federal Rules of Criminal Procedure. The plea agreements authorized them to appeal the district court s Orders (ER 1-19, ) denying the following motions filed and/or joined by Defendants: (1) RFRA Motion (District Court Docket Number ( DN ) 587, 637, 679, 680, 694, 695); (2) Motion to Dismiss Indictment for Unconstitutional Vagueness, on the ground that RFRA s vagueness renders the CSA unconstitutionally vague as applied to the religious conduct at issue herein (DN 469, 474, 555); (3) Motion to Dismiss Indictment, on the ground that the CSA s classification of marijuana as a Schedule I substance violates the Fifth Amendment Due Process Clause (DN 468, 488, 549); and (4) Motion to Suppress Evidence (DN 476, 481, 557, 567), seeking to suppress wiretap recordings on the ground that the government failed to establish the requisite necessity. Pursuant to the plea agreements: (1) Reverend Christie was convicted of Count One of the First Superseding Indictment (conspiracy to manufacture, distribute, and possess with intent to distribute 100 or more marijuana plants), and sentenced to a 60 month term of imprisonment, 4 years supervised release, and forfeiture of his condominium residence and $21, seized therefrom. ER ; and (2) Share Christie was convicted of Count One of the Information filed in Cr. No LEK (conspiracy to manufacture, distribute and possess with intent to distribute 50 or more marijuana plants), and sentenced to a 27 month 5

10 Case: , 06/28/2016, ID: , DktEntry: 48, Page 10 of 62 term of imprisonment, 3 years supervised release, and forfeiture of the $21, that was seized from Reverend Christie s residence. ER On appeal, the assigned panel of Ninth Circuit Judges unanimously ruled in favor of the Government, and affirmed the district court s rulings on the motions at issue. ARGUMENT I. En Banc Review is Necessary to Address Three Matters of Exceptional Importance Fed. R. App. P. 35(a) states that en banc review will not be ordered unless, the proceeding involves a question of exceptional importance. Fed. R. App. P. 35(a). An en banc hearing should be ordered in this case as the proceeding involves three questions of exception importance as discussed in further detail below. A. Reverend Christie s RFRA Motion RFRA prohibits the government from substantially burdening a person s exercise of religion even if the burden results from a rule of general applicability, such as the CSA, unless the government 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 interest. 42 U.S.C. 2000bb-1. As the United States Supreme Court recently stated: RFRA was designed to provide very broad protection for religious liberty. By enacting 6

11 Case: , 06/28/2016, ID: , DktEntry: 48, Page 11 of 62 RFRA, Congress went far beyond what this Court has held is constitutionally required. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2767 (2014). Here, the district court found that the Christies established a prima facie case for their RFRA defense. That is, the Christies established that enforcing the CSA against them for cultivating and distributing Cannabis to Ministry members and medical marijuana patients constituted a substantial burden on their sincere exercise of religion. ER 65. Accordingly, the burden shifted to the government to demonstrate, as to each Defendant, that the instant prosecution furthered a compelling governmental interest and was the least restrictive means for doing so. The term demonstrates means the burdens of going forward with the evidence and of persuasion; 42 U.S.C. 2000bb-2(3). RFRA s strict scrutiny standard is the most demanding test known to constitutional law. City of Boerne v. Flores, 521 U.S. 507, 534 (1997). The United States Supreme Court has defined compelling interest as only those interests of the highest order. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); 42 U.S.C. 2000bb(b) (one purpose of RFRA was to restore the Yoder compelling interest test). The least-restrictive-means standard is [likewise] exceptionally demanding, Hobby Lobby, 134 S.Ct. at 2780 (citing City of Boerne, 521 U.S. at 532). This standard required the government to produce actual evidence to demonstrate that it lacked other means, less restrictive to the Christies religious 7

12 Case: , 06/28/2016, ID: , DktEntry: 48, Page 12 of 62 liberty, to achieve its asserted compelling interest. Hobby Lobby, 134 S. Ct. at ; Mc Allen Grace Brethren Church v. Salazar, 764 F.3d 465, (5 th Cir. 2014) (applying Hobby Lobby). The district court ruled that: (1) the government demonstrated a compelling interest in enforcing the CSA against defendants, because Cannabis distributed through the Ministry s express procedure could have been diverted to nonadherents (ER 77-90); and (2) the instant case is the least restrictive means necessary to further the Government s compelling interest in enforcing the CSA against Defendants. ER 94. Therefore, the district court denied the Christies RFRA Motion. ER In the recent unanimous opinion issued by Judges O Scannlain, Tallman, and Smith, the Court ruled that there was a compelling interest in mitigating the risk of diversion under the facts and circumstances of this case, and that mandating full compliance with the CSA would help to advance this compelling interest to a meaningful degree. In so holding, the panel essentially opined that criminal prosecution was the least restrictive means to achieve the interest of mitigating the risk of diversion of cannabis to those who did not hold sincere religious beliefs in its use. Reverend Christie s and Share Christie s opening brief contains a lengthy and detailed explanation of the facts and circumstances of this case. Due to page limit 8

13 Case: , 06/28/2016, ID: , DktEntry: 48, Page 13 of 62 constraints, it would be impossible to reiterate the facts and circumstances of this case herein. However, in summary, it is clear from a reading of the appellate briefs in this case, that the Government s concern about diversion of cannabis was tied primarily to the Ministry s express procedure. It is also clear from a reading of the appellate briefs, that criminal prosecution and mandating total compliance with the CSA was not the least restrictive means available to address the compelling interest of avoiding diversion through the express procedure. In fact, it was possibly the most restrictive means available. As stated above, en banc review should be granted when the issues raised deal with matters of exceptional importance. How the least restrictive means test is applied and interpreted in RFRA cases is certainly of exceptional importance as it affects the fundamental right to freedom of religion. To adopt the application of the least restrictive means test that the panel did in its June 14, 2016 opinion as the precedent in the Ninth Circuit, would render RFRA meaningless. It is hard to imagine something more restrictive than criminal prosecution. It cannot be the precedent in the Ninth Circuit, that criminal prosecution in a case with these facts and circumstances is deemed to be the least restrictive means. Setting a precedent that could have such far reaching effects on the way in which the least restrictive means test is applied in this circuit to RFRA cases in the 9

14 Case: , 06/28/2016, ID: , DktEntry: 48, Page 14 of 62 future should have the input and oversight of more than three judges. Therefore, en banc review should be granted to both Reverend and Share Christie in this case. B. Marijuana Should Not be Classified as a Schedule I Substance Reverend Christie filed a Motion to Dismiss on the basis that marijuana s classification as a Schedule I substance in the CSA violates his Fifth Amendment Substantive Due Process rights. DN 468. The district court denied the motion. The panel affirmed the district court s denial in its June 14, 2016 opinion. Marijuana s continued classification as a Schedule I substance under the CSA is irrational and arbitrary, and clearly a matter of exceptional importance warranting en banc review for the following reasons. The classification of marijuana as a Schedule I drug is at best based on the disregard of fact and at worst fraud. A Schedule I classification for marijuana is arbitrary, irrational, and scientifically untenable, as marijuana fails to satisfy any of the three necessary criteria for Schedule I classification. Research, state marijuana laws, calls for rescheduling from the medical sector, federal legislation and other acts have brought the irrationality of marijuana s continued placement in Schedule I of the CSA to a point of critical mass. Marijuana s classification in Schedule I is unsupported by the current state of scientific research and fails to meet any one of the three necessary criteria of a Schedule I controlled substance. Accordingly, its current classification as a 10

15 Case: , 06/28/2016, ID: , DktEntry: 48, Page 15 of 62 Schedule I substance is arbitrary and lacking in any rational justification and therefore constitutionally invalid as applied to Reverend and Share Christie. Notwithstanding the current federal law, 22 states plus the District of Columbia have legalized the use of marijuana for medicinal purposes. Additionally, the citizens in Washington and Colorado voted to legalize the recreational use of marijuana in their respective states. Despite overwhelming scientific evidence to the contrary, the federal government continues to insist that marijuana be classified as a Schedule I substance. It is this disregard of fact, science, and rational thought that offends substantive due process. Reverend Christie often quotes Shakespeare s line from Macbeth, confusion now hath made his masterpiece, to describe the history behind marijuana s Schedule I classification. In support of its ruling denying Reverend Christie s Motion, the district court relied in part on United States v. Miroyan, 577 F.2d 489 (9 th Cir. 1978). In Miroyan, the defendant claimed that the classification of marijuana as a Schedule I substance was unreasonable and irrational. Id. at 495. Citing to previous cases, the Ninth Circuit disagreed reiterating its holding (in 1976) that the classification of marijuana as a Schedule I substance was constitutional. Id. The district court noted that Reverend Christie failed to show that Miroyan has been abrogated or is no longer controlling law. ER 6. The panel, in its June 14, 2016, opinion likewise 11

16 Case: , 06/28/2016, ID: , DktEntry: 48, Page 16 of 62 relied on prior Ninth Circuit cases that have addressed this issue. However, as indicated in Reverend Christie s opening brief, the evidence and opinions about marijuana have slowly evolved since the passage of the CSA in 1970, and since Miroyan was decided in Such evolution has picked up much speed and momentum over the past few decades. As the evidence and opinions about marijuana have evolved, so too must the legal analysis concerning the scheduling of marijuana under the CSA. As noted by Justice Anthony Kennedy: [T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Lawrence v. Texas, 539 U.S. 558, 579 (2003). Schedule I classification is reserved for substances that: (1) have the highest potential for abuse, (2) have no currently accepted medical use, and (3) lack safe use under medical supervision. See, 21 U.S.C. 812(b)(1); Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 937 (D.C. Cir. 1991) ( Schedule I drugs are subject to the most severe controls and give rise to the harshest penalties for violations of these controls; they are deemed to be the most dangerous substances, possessing no redeeming value as medicines ). Marijuana fails to meet any of the three criteria mentioned above. It has a lower potential for abuse when compared to other drugs. Contrary to the second 12

17 Case: , 06/28/2016, ID: , DktEntry: 48, Page 17 of 62 criterion for Schedule I placement, marijuana has many currently accepted medical uses in the United States. Numerous respected studies have documented marijuana s medicinal benefits, and have been cited by the courts as well as other governmental bodies in the United States, Canada, Britain, and elsewhere. As well, 22 states plus the District of Columbia 3 have approved cannabis for medical purposes. Moreover, three states have pending legislation to legalize medical marijuana. Various respected medical organizations, both in the United States and abroad, publicly support marijuana s medicinal use. In recognition of the current and potential medical applications of marijuana, such organizations within the United States are now calling for a rescheduling of marijuana from its current Schedule I placement in the CSA. The American Medical Association ( AMA ), which represents about 250,000 doctors, recently reversed its long-standing policy on marijuana, calling for a review of marijuana s status as a Schedule I classification with the goal of facilitating the conduct of clinical research and development of cannabinoid-based medicines[.] AMA Policy: Medical Marijuana (November 10, 2009). 4 Given all 3 Significantly, Congress itself has, at a minimum, found marijuana to have medical purpose and value when it allowed the implementation of the D.C. medical marijuana law (D.C. Act ). 4 Available at 13

18 Case: , 06/28/2016, ID: , DktEntry: 48, Page 18 of 62 of the above, it is an obvious truth that marijuana currently has many well-known and, and well-accepted, medical uses. The arbitrary and irrational placement of marijuana in Schedule I is a matter of exceptional importance. Times change and case-law needs to evolve with evolving times. It is clearly time for this issue to be revisited by this court en banc. C. Reverend Christie s Motion to Suppress The Motion to Suppress sought suppression of all wiretapped conversations and any evidence derived therefrom. DN 476. The Motion to Suppress claimed that the wiretap orders, and extensions, for the Ministry s telephone ( TT1 ) and Reverend Christie s residential telephone ( TT2 ) were granted based on applications which failed to provide the district court with a full and complete statement of the necessity for the wiretapping. DN 476-2, p. 11. Each wiretap application must include a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. See 18 U.S.C (1)(c), (3)(c). The necessity requirement exists in order to limit the use of wiretaps, which are highly intrusive. United States v. Bennett, 219 F.3d 1117, 1121 (9th Cir. 2000) (quoting United States v. Commito, 918 F.2d 95, 98 (9th Cir. 1990)). Further, the necessity requirement ensures that wiretapping is not resorted to in situations where traditional investigative techniques would suffice 14

19 Case: , 06/28/2016, ID: , DktEntry: 48, Page 19 of 62 to expose the crime. United States v. Blackmon, 273 F.3d 1204, 1207 (9 th Cir. 2001). In this case, as demonstrated in Reverend Christie s opening brief, law enforcement had a great deal of success with traditional investigative methods. Additionally, unlike a typical drug conspiracy, law enforcement obtained significant amounts of detailed information through Reverend Christie himself because he openly discussed and publicized the Ministry s purpose and objectives. He was open and honest in his approach to running the Ministry. A wiretap was simply not necessary in this case. It is of exceptional importance for the Ninth Circuit to ensure that the extreme and intrusive practice of wiretapping be limited only to cases in which it is absolutely necessary. This was not such a case, and en banc review is therefore warranted. CONCLUSION Reverend Christie urges this Court to grant his petition for rehearing en banc. Additionally, since all arguments raised herein apply equally to Share Christie, Reverend Christie requests that any en banc review apply to his wife as well. DATED: Honolulu, Hawaii, June 28, /s/ Thomas M. Otake THOMAS M. OTAKE Attorney for Defendant-Appellant-Petitioner ROGER CHRISTIE 15

20 Case: , 06/28/2016, ID: , DktEntry: 48, Page 20 of 62 CERTIFICATE OF COMPLIANCE Pursuant to Rules 35 and 40, Federal Rules of Appellant Procedure, and this Court Circuit Rule 35-4(a) and 40-1(a), the undersigned hereby certifies that the foregoing petition for rehearing en banc is proportionately spaced in 14-point Times New Roman typeface and contains less than 4,200 words. DATED: Honolulu, Hawaii, June 28, /s/ Thomas M. Otake THOMAS M. OTAKE Attorney for Defendant-Appellant-Petitioner ROGER CHRISTIE

21 Case: , 06/28/2016, ID: , DktEntry: 48, Page 21 of 62 APPENDIX A

22 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 221 of (1 of 45) FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No D.C. No. 1:13-cr LEK-1 SHERRYANNE L. CHRISTIE, FKA Sherryanne L. St. Cyr, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROGER CUSICK CHRISTIE, Defendant-Appellant. No D.C. No. 1:10-cr LEK-1 OPINION Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding Argued and Submitted October 16, 2015 Honolulu, Hawaii Filed June 14, 2016

23 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 232 of (2 of 45) 2 UNITED STATES V. CHRISTIE Before: Diarmuid F. O Scannlain, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge O Scannlain SUMMARY * Criminal Law / RFRA The panel affirmed the convictions of two ministers of the Hawaii Cannabis Ministry for violations of the Controlled Substances Act (CSA) in a case in which the defendants claim that their convictions violate their rights freely to exercise their religion, as guaranteed by the Religious Freedom Restoration Act of 1993 (RFRA). The panel held that the government has a compelling interest in mitigating the risk that cannabis from the Ministry will be diverted to recreational users, and that the facts of this case demonstrate that mandating the defendants full compliance with the CSA would help to advance this compelling interest to a meaningful degree. The panel held that in light of these defendants and the facts in this record, the government could not achieve its compelling interest in mitigating diversion through anything less restrictive than mandating the defendants full compliance with the CSA. The panel therefore rejected the defendants RFRA defense. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

24 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 243 of (3 of 45) UNITED STATES V. CHRISTIE 3 Rejecting the defendants contention that RFRA is unconstitutionally vague, and thereby renders the CSA unconstitutionally vague, the panel explained that the Fifth Amendment has no application to RFRA, which is not a penal statute or anything like one. The panel held that the defendants appeal to the rule of lenity is equally untenable. The panel rejected as foreclosed by precedent the defendants contention that the CSA s classification of marijuana as a Schedule I controlled substance violates the Due Process Clause of the Fifth Amendment. The panel held that the district court did not abuse its discretion in issuing wiretaps in the course of investigating the Ministry, and that the district court s determinations in denying the defendants a Franks hearing were not clearly erroneous.

25 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 254 of (4 of 45) 4 UNITED STATES V. CHRISTIE COUNSEL Thomas M. Otake (argued), Law Office of Thomas M. Otake, Honolulu, Hawaii, for Defendant-Appellant Roger Cusick Christie. Georgia K. McMillen (argued), Law Office of Georgia K. McMillen, Wailuku, Hawaii; Lynn E. Panagakos, Law Office of Lynn E. Panagakos, Honolulu, Hawaii, for Defendant- Appellant Sherryanne L. Christie. John M. Pellettieri (argued), Attorney, Appellate Section; Leslie R. Caldwell, Assistant Attorney General; Sung-Hee Suh, Deputy Assistant Attorney General; United States Department of Justice, Criminal Division; Florence T. Nakakuni, United States Attorney; Michael K. Kawahara, Assistant United States Attorney; United States Attorney s Office, Honolulu, Hawaii; for Plaintiff-Appellee. OPINION O SCANNLAIN, Circuit Judge: We must decide whether the federal government may criminally prosecute two ministers of the Hawaii Cannabis Ministry who admit to using and distributing large quantities of cannabis, but who claim that in doing so they were merely exercising their sincerely held religious beliefs. I The Reverend Roger Cusick Christie founded the Hawaii Cannabis Ministry in the year 2000, in Hilo, a city on the

26 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 265 of (5 of 45) UNITED STATES V. CHRISTIE 5 Island of Hawaii. Rev. Christie envisioned the Ministry as a community wherein Cannabis could be celebrated as a sacrament. Sherryanne Christie was received into the Ministry in 2007, and in 2008 she was ordained a minister, eventually joining Rev. Christie as a sort of assistant manager. Sherryanne ran the Ministry by herself for several months in 2009 while Rev. Christie recuperated from a broken ankle. The two wed in A According to Rev. Christie, [t]he consumption, possession, cultivation and distribution of Cannabis are essential and necessary components of the THC Ministry, 1 which distributed cannabis both to its members and to medical marijuana users. As Rev. Christie put it, [n]o truly religious person would turn a blind eye to those in need. Rev. Christie boasted of winning the Ministry 2,000 to 3,000 converts on the Island of Hawaii, and another 62,000 worldwide. His charisma consisted, in part, of his promise that those who joined his flock would be delivered from the 1 THC is presumably a (not so subtle) allusion to tetrahydrocannabinols, which are hallucinogenic substances that are found in cannabis and are specifically listed as Schedule I controlled substances under the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U.S.C. 801 et seq., and its implementing regulations, 21 C.F.R (d)(31). Following the parties lead, we use the terms cannabis and marijuana interchangeably. Hence, references to marijuana should be understood to signify cannabis within the meaning of the CSA. Cf. 21 U.S.C. 802(16) ( The term marihuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. ).

27 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 276 of (6 of 45) 6 UNITED STATES V. CHRISTIE reach of federal drug laws. For instance, he was enthusiastic about advertising the Ministry s slogan: We use cannabis religiously and you can too. Similarly, the Ministry s website prominently displayed an assurance that members would know neither arrest, nor prosecution, nor conviction of marijuana charges... starting as soon as you sign up. Signing up was not difficult. There were two primary paths to membership. Those who wished could come to downtown Hilo and meet with Rev. Christie at the Ministry s physical home, called the Sanctuary. Rev. Christie would often insist on a donation of fifty dollars, and while he reserved the right to turn hopefuls away, one of the Ministry s former employees could not recall anyone ever being rejected. To the contrary, Rev. Christie even boasted of enrolling people who come in on a cruise ship and they, you know they are just here for a day and they need... you know? Alternatively, one could join the Ministry by purchasing a so-called Sanctuary Kit for $250 through the Ministry s website. Sanctuary Kits included one or two blank membership cards; information about the Ministry, and about laws governing religious cannabis use; and various cannabisrelated items (but no cannabis itself). The Ministry s website made clear that there was no minimum age to join, and that even minors could become members. The Ministry obtained its cannabis from various sources, including from a black market in and around Hilo, and distributed cannabis in two primary ways. First was during communion at Sunday services, which took place every week for approximately two hours at a time. At the start of each service Rev. Christie would ask those

28 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 287 of (7 of 45) UNITED STATES V. CHRISTIE 7 present to introduce themselves and explain why they had come, in order, he testified, to weed out (his pun) any visitors or members who seemed insincere. There is no evidence of how he went about doing so. Second, during the week Rev. Christie and other Ministry employees would distribute cannabis to members who came in person to the Sanctuary, again in exchange for a suggested donation price. As Rev. Christie explained, members could choose from a broad menu of cannabis products to pick up and to take away with them: packets, live plants, clones, seeds, candy, brownies and chocolate chip cookies all with cannabis, holy anointing oil, and tinctures. 2 The Ministry s distribution protocol required those who wished to obtain cannabis during the week to appear in person and to present a membership card or a state-issued medical marijuana card. Prior to the Spring of 2009, recipients were also required to meet privately with Rev. Christie. By April 2009, the Ministry was distributing more than half a pound of cannabis among approximately sixty to seventy people daily, most everyday. It was around this time that the Christies instituted a more efficient distribution method, dubbed the express procedure. Its purpose was to allow individuals to receive cannabis from the Ministry without first having to meet 2 Tinctures could be used in a variety of ways, as Rev. Christie explained to one interested party over the phone: for example, [y]ou carry your purse, you can dose yourself [at] the movie theater[,] at the restaurant.... You just take out the bottle and give a drop in your tongue and away you go, nobody even looks at you.

29 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 298 of (8 of 45) 8 UNITED STATES V. CHRISTIE privately with either Sherryanne or Rev. Christie. Instead, each person would order a specific amount of cannabis from a Ministry staff member, hand over his or her Ministry ID card, tender the corresponding donation price which could be more or less expensive depending on the quality of the herb and wait while the staff member retrieved the requested cannabis from Rev. Christie or Sherryanne. The express procedure eventually became the primary way the Ministry distributed cannabis, and it was so popular that it often generated a line stretching out the Ministry door and onto the sidewalk. The Christies were proud that the Ministry achieved such a high profile, and they aver that they operated the Ministry in an open and non-secretive manner throughout its history. Rev. Christie was something of a public personality, for instance, speaking candidly about the Ministry s activities in various news media and even running for mayor on a ticket pushing marijuana reform. Over the years Rev. Christie also met several times to discuss the Ministry with various representatives of state and federal law enforcement. The Christies wrote down a handful of rules nominally designed to ensure that cannabis went out only to Ministry members or medical marijuana users. But in practice these rules were little more than parchment barriers. Specifically, the Ministry did not confirm that persons who came to the express service were who their Ministry ID card identified them as, and the employees administering express did not confirm that the person named on the Ministry ID card was actually a member. In addition, the district court found that Ministry employees never advised people who came through the express service that there were

30 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 309 of (9 of 45) UNITED STATES V. CHRISTIE 9 restrictions on what members could do with the sacrament. For example, they never told customers that the sacrament was only for religious purposes or that members could only use the sacrament on Ministry premises or that members were prohibited from distributing the sacrament to nonmembers. B In response to these concerns, the federal government opened a criminal investigation into Rev. Christie and the Ministry. Investigatory results included 284 marijuana plants which law enforcement officers found in July 2009 on a farm run by friends of the Christies, whom the Christies had recruited to cultivate marijuana to be distributed through the Ministry. In June 2010, a grand jury indicted Rev. Christie, Sherryanne, and various of their associates, charging them with a handful of crimes including numerous Controlled Substances Act ( CSA ) violations. See 21 U.S.C. 841(a)(1), 841(b)(1)(B), 846, and 856(a)(1). After the district court denied four of their pretrial motions, Rev. Christie and Sherryanne ultimately pled guilty pursuant to plea agreements. Rev. Christie pled guilty, as relevant here, to one count of conspiracy to manufacture and distribute 100 or more marijuana plants, in violation of 21 U.S.C. 846, 841(a)(1), and 841(b)(1)(B). For her part, Sherryanne pled guilty to one count of conspiring to manufacture and distribute fifty or more marijuana plants, in violation of 21 U.S.C. 846, 841(a)(1), and 841(b)(1)(C). Rev. Christie was sentenced to sixty months in prison, to be followed by four years of supervised release. Sherryanne was sentenced to twenty-seven months in prison, to be followed by three years of supervised release.

31 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page 310 of of (10 of 45) 10 UNITED STATES V. CHRISTIE The Christies timely appealed their convictions. The district court had jurisdiction under 18 U.S.C. 3231, and we have jurisdiction under 28 U.S.C II The Christies first claim that their convictions violate their rights freely to exercise their religion, as guaranteed by the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. 2000bb et seq. 3 A RFRA supplies a rule of decision in cases where a person finds himself in the unfortunate position of needing to choose between following his faith and following the law. In general, RFRA provides, sincere religious objectors must be given a pass to defy obligations that apply to the rest of us, if refusing to exempt or to accommodate them would impose a substantial burden on their sincere exercise of religion. 42 U.S.C. 2000bb-1(a). But this rule is not absolute. The mere fact that [a person s] religious practice is [substantially] burdened by a 3 The Christies do not argue that the government has violated their rights under the First Amendment s Free Exercise Clause, presumably recognizing that any such theory would be doomed by the Supreme Court s decision in Employment Division v. Smith, which held that the right of free exercise [under the First Amendment] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes... conduct that his religion prescribes. 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the judgment)).

32 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page of of (11 of 45) UNITED STATES V. CHRISTIE 11 governmental program does not mean that an exemption accommodating his practice must be granted. Thomas v. Review Bd., 450 U.S. 707, 718 (1981). Even in the circumstances just described, RFRA allows the federal government to treat religious objectors the same as everyone else only if the government meets a two-part test: the government must demonstrate that forcing the religious objector to comply with the law is both in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. 2000bb-1(b). If the government cannot justify its actions under that test, courts are directed to order appropriate relief against the government and in favor of the religious objector. Id. 2000bb-1(c). In other words, RFRA gives each person a statutory right not to have his sincere religious exercise substantially burdened by the government, save for cases expressly denominated [e]xception[al]. Id. 2000bb-1(b). Moreover, RFRA is explicit that such right may be invoked against the government as either a claim or defense, id. 2000bb-1(c), a sword or a shield. If a person has a sufficiently realistic fear that the government is going to punish him for exercising his religious beliefs in defiance of the law, he may unsheathe RFRA and file a preemptive strike in an effort to subdue the government before it treads further. E.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, , 439 (2006) (granting a preliminary injunction under RFRA to a religious sect threatened with prosecution for past violations of the CSA); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785 (2014) (enjoining government from requiring full compliance with the Affordable Care Act of claimants who felt compelled to violate its commands for religious reasons). Alternatively,

33 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page of of (12 of 45) 12 UNITED STATES V. CHRISTIE if the government strikes first for example, by indicting a person for engaging in activities that form a part of his religious exercise but are prohibited by law the person may raise RFRA as a shield in the hopes of beating back the government s charge. E.g., United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996) (vacating convictions so defendants could interpose RFRA as defense to having possessed marijuana in violation of the CSA); see also Wisconsin v. Yoder, 406 U.S. 205, 207, (1972) (striking down criminal convictions and nullifying state compulsory school-attendance law as applied to religious objectors who invoked First Amendment defense to prosecution). In either scenario, a religious objection may have the effect of immunizing the objector s past conduct from official sanction even though such conduct violated a law that is otherwise valid and of nullifying, in whole or in part, his continuing duty to comply with a generally applicable command. B For their RFRA defense to prevail, the Christies first had to establish a prima facie case. United States v. Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007) (per curiam). The Christies were required to demonstrate that the beliefs they espouse are actually religious in nature (rather than philosophical or political, for example); that they sincerely hold those beliefs, and do not simply recite them for the purpose of draping religious garb over commercial activity or straightforward drug trafficking; and that forcing them to obey the federal marijuana laws would impose a substantial burden on their ability to conduct themselves in accordance with those sincerely held religious beliefs.

34 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page of of (13 of 45) UNITED STATES V. CHRISTIE 13 The district court assumed without deciding that the Christies had satisfied all of those elements. A fairminded observer might question just how plausible each of those assumptions really is, but on this appeal we are not asked to determine if any of them would stand up under scrutiny. Like the district court, we will assume without deciding, and for purposes of this proceeding only that the Christies have successfully established a prima facie case under RFRA. With that assumption, RFRA forbids the government from requiring the Christies to comply with the CSA unless the government can make two showings. The government must demonstrate, first, that demanding the Christies unbending compliance more concretely, forcing the Christies to violate their religious beliefs by ceasing to use and to distribute cannabis altogether would actually advance a compelling government interest to some meaningful degree. See Hobby Lobby, 134 S. Ct. at 2779 (holding that government must demonstrate that its marginal interest in enforcing the [challenged law] in these cases is compelling (emphasis added)); Brown v. Entm t Merchs. Ass n, 564 U.S. 786, 803 n.9 (2011) ( [T]he government does not have a compelling interest in each marginal percentage point by which its goals are advanced. ). If the government clears that hurdle, it must then show that forcing the Christies to comply with the CSA is the least restrictive means by which it can achieve its compelling interest. That is, the government must show that it would not be able to accommodate [the Christies ] religion more without serving [its compelling] interest less. United States v. Friday, 525 F.3d 938, 946 (10th Cir. 2008). The district court concluded that the government had done everything RFRA requires. We review the district court s

35 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page of of (14 of 45) 14 UNITED STATES V. CHRISTIE compelling-interest and least-restrictive-means conclusions de novo, United States v. Vasquez-Ramos, 531 F.3d 987, 990 (9th Cir. 2008) (per curiam), but we review any findings of historical fact underlying those conclusions for clear error, see Ornelas v. United States, 517 U.S. 690, 699 (1996). C The threshold question is whether the government has a compelling interest in prosecuting the Christies for using and distributing cannabis. As the Supreme Court has emphasized, RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person the particular claimant whose sincere exercise of religion is being substantially burdened. O Centro, 546 U.S. at (quoting 42 U.S.C. 2000bb-1(b)). Hence, we must look[] beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants. Id. at 431. The compelling-interest determination is not to be made in the abstract, but in the circumstances of this case. Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000). 1 The government first argues that it has a compelling interest in mitigating the risk that cannabis from the Ministry will be diverted to recreational users, and that the facts of this case demonstrate that mandating the Christies full compliance with the CSA would help to advance this compelling interest to a meaningful degree. We agree.

36 Case: , , 06/14/2016, 06/28/2016, ID: , , DktEntry: 53-1, 48, Page of of (15 of 45) UNITED STATES V. CHRISTIE 15 We have little trouble concluding that the government has a compelling interest in preventing drugs set aside for sacramental use from being diverted to non-religious, recreational users. A risk of diversion, after all, simply means the threat that cannabis an illegal, Schedule I controlled substance will wind up in the hands of people whose use is disconnected from any sincere religious practice. Such illegal, non-religious use, by definition, finds no protection under RFRA. Further, the government s interest in reducing the incidence of illicit, recreational cannabis use follows from its more general interest in enforcing the CSA to promot[e] public health and safety, an interest the Supreme Court recognized in O Centro. 546 U.S. at 438. Moreover, insofar as diverted cannabis could foreseeably fall into the hands of minors, or otherwise expose them to the hazards associated with illegal, recreational drug use, the government s interest in reducing the likelihood of diversion is contained within its compelling interest in protecting the physical and psychological well-being of minors. Sable Commc ns of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989). In addition to demonstrating that it has a compelling interest in combating the risk of diversion in general, the government must take a second step under RFRA: it must show that its interest in combating diversion is compelling on the facts of this case. Cf. Entm t Merchs., 564 U.S. at 799 (explaining that the government must specifically identify an actual problem in need of solving, and must show that the burden on the specific claimants religious exercise is actually necessary to the solution. (quotation marks omitted)). O Centro is instructive. There, the Supreme Court endorsed the government s general interest in promoting public health and safety by enforcing the Controlled