U.S. v. Meyers

• Citation: 95 F.3d 1475
• Decision Date: 06 September 1996
• Docket Number: No. 95-8079,95-8079
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David MEYERS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1475

95 F.3d 1475

UNITED STATES of America, Plaintiff-Appellee, v. David MEYERS, Defendant-Appellant.

No. 95-8079.

United States Court of Appeals, Tenth Circuit.

Sept. 6, 1996.

Rehearing Granted Nov. 5, 1996.

David A. Kubichek (David D. Freudenthal, United States Attorney, Cheyenne, WY, Patrick J. Crank, Assistant United States Attorney, with him on the briefs), Casper, WY, for appellee.

Thomas B. Jubin, Cheyenne, WY, for appellant.

Before BALDOCK, BARRETT and BRORBY, Circuit Judges.

BARRETT, Senior Circuit Judge.

David Meyers (Meyers) appeals from his conviction and sentence entered following a jury trial wherein he was found guilty of conspiracy to possess with intent to distribute and to distribute marijuana, in violation of 21 U.S.C. § 846 (Count I), and aiding and abetting possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count II).

Facts

On August 24, 1994, Carl Jones (Jones) purchased four pounds of marijuana from Mitchell Meyers in Tucson, Arizona, which had been arranged by Meyers and coconspirator, Scott Recore (Recore). Jones mailed the marijuana to himself in Casper, Wyoming, in an attempt to avoid discovery. The attempt failed and the marijuana was discovered.

Jones ultimately decided to cooperate and in a series of statements described a marijuana conspiracy allegedly involving himself, Meyers, Richard Federico (Federico) and Mitchell Meyers. Jones' statements provided the basis for Wyoming Division of Criminal Investigation Special Agent Steve Freel's (Agent Freel) testimony and evidence presented to the grand jury. Agent Freel testified to the grand jury that Jones was involved in storing and packaging marijuana in various quantities for Meyers between January and August, 1994, in exchange for payment in the form of one-quarter of a pound of marijuana; it was Meyers who advised Jones and inspected the packages; and Jones made four trips for Meyers and brought back between five and seven pound of marijuana each trip.

On May 19, 1995, Meyers was indicted by a grand jury on Count I and Count II. On August 11, 1995, Meyers pled not guilty and trial was set for October 2, 1995.

Just prior to trial, the government discovered that Jones had lied to investigating officers in his initial statements by omitting Recore's middleman role in the conspiracy and by stating that he dealt directly with Meyers when in fact he dealt primarily with Recore. Jones allegedly lied pursuant to an agreement between Meyers, Recore, and himself which provided that if caught Recore and Jones would intentionally blame Meyers for the entire conspiracy so that Meyers could "try out" his religious freedom defense.

At trial, Jones testified that from January to July, 1994, he would receive between five and seven pounds of marijuana from Recore every seven to ten days; in July, 1994, he traveled to El Paso, Texas, to obtain marijuana from Federico at the direction of Recore, who was acting at the direction of Meyers; and at the end of August, 1994, he traveled to Tucson, Arizona, to meet with Meyers' cousin, Mitchell Meyers, and obtain four pounds of marijuana. Recore testified that he was receiving all the marijuana he distributed to Jones from Meyers and that he was acting at Meyers' direction by delivering the marijuana to Jones.

Before trial, Meyers filed numerous motions including motions to dismiss based on religious freedom under the First Amendment and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et. seq. (RFRA). At the hearing on Meyers' religious freedom defense, Meyers testified that he is the founder and Reverend of the Church of Marijuana and that it is his sincere belief that his religion commands him to use, possess, grow and distribute marijuana for the good of mankind and the planet earth.

After a careful and thorough analysis, the district court concluded that the neutral drug laws at issue were not subject to a First Amendment free exercise challenge and that Meyers' beliefs did not constitute a religion for purposes of the RFRA. United States v. Meyers, 906 F.Supp. 1494, 1509 (D.Wyo.1995). Therefore, the court denied his motion to raise a RFRA defense. ¹

The jury found Meyers guilty on both counts and he was sentenced to thirty-three months imprisonment, three years supervised release, and assessed $100.

Issues

On appeal, Meyers contends that: (1) the district court erred in prohibiting his religious freedom defense; (2) the indictment was legally insufficient; (3) the indictment was improperly amended by the proof at trial; (4) he was denied due process by the government's failure to timely inform him or the court of the infirmity in the testimony presented to the grand jury; (5) the district court erred in failing to award him a two point reduction in his offense level for acceptance of responsibility; (6) the district court erred in its calculation of the marijuana quantities attributable to him; and (7) the district court erred in failing to timely address the issues of pre-trial release and post-conviction release pending appeal.

Discussion

I. Religious Freedom Defense

Meyers contends that the district court erred in failing to balance his interests in his religion with governmental interests as required by the First Amendment and the RFRA; in refusing to recognize his interpretation of his own religion; and in refusing to give his beliefs the status of religion.

A. Free Exercise Clause

Meyers asserts that as the Reverend of the Church of Marijuana it is his sincere belief that his religion commands him to use, possess, and distribute marijuana for the benefit of mankind and the planet earth and that 21 U.S.C. §§ 841 and 846 and 18 U.S.C. § 2, which prohibit this religiously motivated conduct, unduly burden his constitutional right to free exercise of religion. Meyers maintains that in order to substantially burden religiously motivated conduct, the government must demonstrate a compelling state interest and use means narrowly tailored to achieve that interest.

The Free Exercise Clause of the First Amendment guarantees that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. In Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903-04, 84 L.Ed. 1213 (1940), the Court recognized that there are two aspects of the free exercise of religion: freedom to believe and freedom to act.

On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,--freedom to believe and freedom to act.

Id. at 303, 60 S.Ct. at 903.

While the freedom to believe and profess whatever religious doctrines one desires is absolute, the freedom to act cannot be. Id. at 303-04, 60 S.Ct. at 903-04. "Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection." Id. at 304, 60 S.Ct. at 903.

In Employment Div., Dep't of Human Resources of Or., v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Court held that the right to free exercise of religion 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 (or prescribes) conduct that his religion prescribes (or proscribes), nor does a generally applicable criminal prohibition on a particular form of conduct that substantially burdens a religious practice have to be justified by a "compelling governmental interest." (citing United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 1058 n. 3, 71 L.Ed.2d 127 (1982)). In Smith, respondents argued that "their religious motivation for using peyote place[d] them beyond the reach of a criminal law that [was] not specifically directed at their religious practice and that [was] concededly constitutional as applied to those who use the drug for other reasons." 494 U.S. at 878, 110 S.Ct. at 1599. The respondents further argued "that even though exemption from generally applicable criminal laws need not automatically be extended to religiously motivated actors, at least the claim for a religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)," where governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. Smith, 494 U.S. at 882-83, 110 S.Ct. at 1601-03.

In reaching its decision, the Court stated that "[w]e have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Id. at 878-79, 110 S.Ct. at 1600. The Court pointed out that "[t]he only decisions in which [it has] held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections." Id. at 881, 110 S.Ct. at 1601 (citations omitted).

In addition, the Court specifically rejected the respondents contention that a neutral law of general applicability that burdens a religious practice must be justified by a compelling governmental interest. The Court held that:

The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual...