UNITED STATES COURT OF APPEALS
         Filed 9/6/96
                               FOR THE TENTH CIRCUIT
         UNITED STATES OF AMERICA,          )
              Plaintiff-Appellee,           )
         v.                                 )         No. 95-8079
         DAVID MEYERS,                      )    
              Defendant-Appellant.          )
                            FOR THE DISTRICT OF WYOMING
                                (D.C. No. 95-CR-58)
         David A. Kubichek (David D. Freudenthal, United States Attorney, 
         Cheyenne, Wyoming, Patrick J. Crank, Assistant United States 
         Attorney, with him on the briefs), Casper, Wyoming, for appellee.
         Thomas B. Jubin, Cheyenne, Wyoming, 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).


              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 


              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)

         (1)          The district court denied Meyers' motion before trial 
         at the hearing on October 2, 1995.  (ROA, Vol. III at 68-70). 
         However, the district court's written Order was filed on November 
         14, 1995.  United States v. Meyers, 906 F. Supp. 1494 (D. Wyo.1995).

              The jury found Meyers guilty on both counts and he was 

         sentenced to thirty-three months imprisonment, three years 

         supervised release, and assessed $100.


              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.


                           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 


              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 

         (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.

              While the freedom to believe and profess whatever religious 

         doctrines one desires is absolute, the freedom to act cannot be.  

         Id. at 303-04.  "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 


              In Employment Div., Dep't of Human Resources of Or., v. Smith, 

         494 U.S. 872 (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 (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.  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 (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.

              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.  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 (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 development." 
              Lyng [v. Northwest Indian Cemetery Protective Assn., 485 
              U.S. 439, 451 (1988)].  To make an individual's 
              obligation to obey such a law contingent upon the law's 
              coincidence with his religious beliefs, except where the 
              State's interest is "compelling--permitting him, by 
              virtue of his beliefs, "to become a law unto himself," 
              Reynolds v. United States, 98 U.S. [145], 167 [1878]--
              contradicts both constitutional traditions and common 
         Id. at 885 (footnote omitted).

              In our case, Meyers' challenge to his convictions under the 

         Free Exercise Clause must fail.  First, as in Smith, Meyers 

         challenges the application of valid and neutral laws of general 

         applicability on the grounds that they prohibit conduct that is 

         required by his religion.  Therefore, we hold that Meyers' 

         challenge fails for the same reasons as the respondents challenge 

         in Smith failed, i.e., the right to free exercise of religion under 

         the Free Exercise Clause of 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 incidentally 

         affects religious practice.  Second, we hold that when, as here, 

         the challenge is to a valid neutral law of general applicability,

         the law need not be justified by a compelling governmental 

         interest.  See Church of the Lukumi Babalu Aye, Inc. v. City of 

         Hialeah, 508 U.S. 520, 521 (1993).

                                      B.  RFRA

              Meyers argues that the district court erred in refusing to 

         recognize his interpretation of his own religion and in refusing to 

         give his beliefs the status of religion under the RFRA.

              In response to the Court's rejection of the compelling 

         governmental interest test in Smith, Congress passed the RFRA re-

         establishing the compelling interest test of Sherbert, 374 U.S. 

         398, and Wisconsin v. Yoder, 406 U.S. 205 (1972), as the analytical 

         framework governing all cases where free exercise of religion is 

         substantially burdened.  42 U.S.C.  2000bb(b)(1).  

              The RFRA provides that "[g]overnment shall not substantially 

         burden a person's exercise of religion even if the burden results 

         from a rule of general applicability, except as provided in 

         subsection (b) of this section."   2000bb-1(a).  Subsection (b) 

         provides that:

                   Government may substantially burden a person's 
              exercise of religion only if it demonstrates that 
              application of the burden to the person--
                   (1) is in furtherance of a compelling governmental 
              interest; and
                   (2) is the least restrictive means of furthering 
              that compelling governmental interest.

         42 U.S.C.  2000bb-1(b).

              Under the RFRA, a plaintiff must establish, by a preponderance 

         of the evidence, three threshold  requirements to state a prima 

         facie free exercise claim.  Thiry v. Carlson, 78 F.3d 1491, 1494 

         (10th Cir. 1996).  The governmental action must (1) substantially 

         burden, (2)  a religious belief rather than a philosophy or  way of 

         life, (3) which belief is sincerely held by the plaintiff.  Id. 

         The government need only accommodate the exercise of actual 

         religious convictions.  Werner v. McCotter, 49 F.3d 1476, 1479 n.1 

         (10th Cir.) (citing Yoder, 406 U.S. at 215-19; Thomas v. Review 

         Bd., 450 U.S. 707, 713-18 (1981)), cert. denied, ___ U.S. ___, 115 

         s. Ct. 2625 (1995).  Once the plaintiff has established the 

         threshold requirements by a preponderance of the evidence, the 

         burden shifts to the government to demonstrate that the challenged 

         regulation furthers a compelling state interest in the least 

         restrictive manner.  Werner, 49 F.3d at 1480 n.2 (citing 42 U.S.C. 


              Our review of the requirements, although largely factual in 

         nature, presents mixed questions of fact and law.  Thiry, 78 F.3d 

         at 1495.  We review the meaning of the RFRA de novo, including the 

         definitions as to what constitutes substantial burden and what 

         constitutes religious belief, and the ultimate determination as to

         whether the RFRA has been violated.  Id.  Sincerity is a factual 

         matter and, as with historical and other underlying factual 

         determinations, we defer to the district court's findings, 

         reversing only if those findings are clearly erroneous.  Id.

              There is no dispute that Meyers' beliefs are sincerely held 

         and that they are substantially burdened by 21 U.S.C.  841 and 

         846 and 18 U.S.C.  2.  The issue is whether his sincerely held 

         beliefs are "religious beliefs," rather than a philosophy or way of 

         life.  In analyzing this issue, the district court examined the 

         cases that have delved into the question of "what is religion" and 

         catalogued the many factors used to determine whether a set of 

         beliefs is religious in nature.(2)  Meyers, 906 F. Supp. at 1501.  The court then used its list of factors to examine Meyers' beliefs 

         to determine if his beliefs fit the factors sufficiently to be 

         included in the realm of "religious beliefs."  

              Keeping in mind that the threshold for establishing the 

         religious nature of his beliefs is low, the court considered the 

         following factors:

              1.   Ultimate Ideas: Religious beliefs often address 
              fundamental questions about life, purpose, and death.  As 
              one court has put it, "a religion addresses fundamental 
              and ultimate questions having to do with deep and 
              imponderable matters."  Africa, 662 F.2d at 1032.  These 
              matters may include existential matters, such as man's 
              sense of being; teleological matters, such as man's 
              purpose in life; and cosmological matters, such as man's 
              place in the universe.
              2.   Metaphysical Beliefs: Religious beliefs often are 
              "metaphysical," that is, they address a reality which 
              transcends the physical and immediately apparent world. 
              Adherents to many religions believe that there is another 
              dimension, place, mode, or temporality, and they often 
              believe that these places are inhabited by spirits, 
              souls, forces, deities, and other sorts of inchoate or 
              intangible entities.
              3.   Moral or Ethical System: Religious beliefs often 
              prescribe a particular manner of acting, or way of life, 
              that is "moral" or "ethical."  In other words, these 
              beliefs often describe certain acts in normative terms, 
              such as "right and wrong," "good and evil," or "just and 
              unjust."  The beliefs then proscribe those acts that are 
              "wrong," "evil," or "unjust."  A moral or ethical belief 
              structure also may create duties -- duties often imposed
              (2)          The district court "gleaned" many of these factors from 
         the following cases: Africa v. Commonwealth of Pa., 662 F.2d 1025 
         (3rd Cir. 1981), cert. denied, 456 U.S. 908 (1982); Malnak v. 
         Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Sun Myung 
         Moon, 718 F.2d 1210 (2nd Cir. 1983), cert. denied, 466 U.S. 971 
         (1984); Founding Church of Scientology of Washington, D.C. v. 
         United States, 409 F.2d 1146 (D. C. Cir.), cert. denied, 396 U.S. 
         963 (1969); Washington Ethical Soc'y v. District of Columbia, 249 
         F.2d 127 (D.C. Cir. 1957); United States v. Kauten, 133 F.2d 703 
         (2nd Cir. 1943); Sherr v. Northport-East Northport Union Free 
         Sch. Dist., 672 F. Supp. 81 (E.D.N.Y. 1987); Jacques v. Hilton, 
         569 F. Supp. 730 (D.N.J. 1983), aff'd, 738 F.2d 422 (3rd Cir. 
         1984); Church of the Chosen People v. United States, 548 F. Supp. 
         1247 (D. Minn. 1982); Womens Services, P.C. v. Thone, 483 F. 
         Supp. 1022 (D. Neb. 1979), aff'd, 636 F.2d 206 (8th Cir. 1980), 
         vacated, 452 U.S. 911 (1981); Stevens v. Berger, 428 F. Supp. 896 
         (E.D.N.Y. 1977); Remmers v. Brewer, 361 F. Supp. 537 (S.D. Iowa 
         1973), aff'd, 494 F.2d 1277, cert. denied, 419 U.S. 1012 (1974);United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968); Fellowship 
         of Humanity v. Alameda County, 315 P.2d 394 (Cal. Ct. App. 1957).

              by some higher power, force, or spirit -- that require 
              the believer to abnegate elemental self-interest.
              4.   Comprehensiveness of Beliefs: Another hallmark of 
              "religious" ideas is that they are comprehensive.  More 
              often than not, such beliefs provide a telos, an 
              overreaching array of beliefs that coalesce to provide 
              the believer with answers to many, if not most, of the 
              problems and concerns that confront humans.  In other 
              words, religious beliefs generally are not confined to 
              one question or a single teaching.  Africa, 662 F.2d at 
              5.   Accoutrements of Religion: By analogy to many of the 
              established or recognized religions, the presence of the 
              following external signs may indicate that a particular 
              set of beliefs is "religious":
                   a.   Founder, Prophet, or Teacher: Many religions 
              have been wholly founded or significantly influenced by 
              a deity, teacher, seer, or prophet who is considered to 
              be divine, enlightened, gifted, or blessed.
                   b.   Important Writings: Most religions embrace 
              seminal, elemental, fundamental, or sacred writings. 
              These writing often include creeds, tenets, precepts, 
              parables, commandments, prayers, scriptures, catechisms, 
              chants, rites, or mantras.
                   c.   Gathering Places: Many religions designate 
              particular structures or places as sacred, holy, or 
              significant.  These sites often serve as gathering places 
              for believers.  They include physical structures, such as 
              churches, mosques, temples, pyramids, synagogues, or 
              shrines; and natural places, such as springs, rivers, 
              forests, plains, or mountains.
                   d.   Keepers of Knowledge: Most religions have 
              clergy, ministers, priests, reverends, monks, shamans, 
              teachers, or sages.  By virtue of their enlightenment, 
              experience, education, or training, these people are 
              keepers and purveyors of religious knowledge.

                   e.   Ceremonies and Rituals: Most religions include 
              some form of ceremony, ritual, liturgy, sacrament, or 
              protocol.  These acts, statements, and movements are 
              prescribed by the religion and are imbued with 
              transcendent significance.
                   f.   Structure or Organization: Many religions have 
              a congregation or group of believers who are led, 
              supervised, or counseled by a hierarchy of teachers, 
              clergy, sages, priests, etc.
                   g.   Holidays: As is etymologically evident, many 
              religions celebrate, observe, or mark "holy," sacred, or 
              important days, weeks, or months.
                   h.   Diet or Fasting: Religions often prescribe or 
              prohibit the eating of certain foods and the drinking of 
              certain liquids on particular days or during particular 
                   I.   Appearance and Clothing: Some religions 
              prescribe the manner in which believers should maintain 
              their physical appearance, and other religions prescribe 
              the type of clothing that believers should wear.
                   j.   Propagation: Most religious groups, thinking 
              that they have something worthwhile or essential to offer 
              non-believers, attempt to propagate their views and 
              persuade others of their correctness.  This is sometimes 
              called "mission work," "witnessing," "converting," or 
         Meyers, 906 F. Supp. at 1502-03 (footnotes omitted).  

              The district court emphasized that "it cannot rely solely on 

         established or recognized religions to guide it in determining 

         whether a new and unique set of beliefs warrants inclusion" and 

         that "no one of these factors is dispositive, and that the factors 

         should be seen as criteria that, if minimally satisfied, counsel

         the inclusion of beliefs within the term `religion.'"  Id. at 1503. 

         However, in accord with Yoder, the court noted that "[p]urely 

         personal, political, ideological, or secular beliefs probably would 

         not satisfy enough criteria for inclusion."  Id. at 1504.  See 

         Yoder, 406 U.S. at 216 (philosophical and personal beliefs are 

         secular beliefs); Africa, 662 F.2d at 1036 (finding beliefs are 

         secular not religious); Berman, 156 F.2d at 380-81 (beliefs which 

         are moral and social are not religious); Church of the Chosen 

         People, 548 F. Supp. at 1253 (beliefs which are sexual and secular 

         are not religious).

              After carefully examining Meyers' beliefs derived from his 

         testimony, the district court concluded that his beliefs were 

         secular and, thus, did not constitute a "religion" for RFRA 

         purposes.  Meyers, 906 F. Supp. at 1509.  The court concluded that:

                   Marijuana's medical, therapeutic, and social effects 
              are secular, not religious. . . . Here, the Court cannot 
              give Meyers' "religious" beliefs much weight because 
              those beliefs appear to be derived entirely from his 
              secular beliefs.  In other words, Meyers' secular and 
              religious beliefs overlap only in the sense that Meyers 
              holds secular beliefs which he believes so deeply that he 
              has transformed them into a "religion."
                   While Meyers may sincerely believe that his beliefs 
              are religious, this Court cannot rely on his sincerity to 
              conclude that his beliefs rise to the level of a 
              "religion" and therefore trigger RFRA's protections. 
              Meyers is, of course, absolutely free to think or believe 
              what he wants.  If he thinks that his beliefs are a

              religion, then so be it.  No one can restrict his 
              beliefs, and no one should begrudge him those beliefs. 
              None of this, however, changes the fact that his beliefs 
              do not constitute a "religion" as that term is uneasily 
              defined by law.  Were the Court to recognize Meyers' 
              beliefs as religious, it might soon find itself on a 
              slippery slope where anyone who was cured of an ailment 
              by a "medicine" that had pleasant side-effects could 
              claim that they had founded a constitutionally or 
              statutorily protected religion based on the beneficial 
         Id. at 1508.  Finally, the court noted that "Meyers' professed 

         beliefs have an ad hoc quality that neatly justify his desire to 

         smoke marijuana."  Id. at 1509.

              We agree with the district court.  Under the district court's 

         thorough analysis of the indicia of religion, which we adopt, we 

         hold that Meyers' beliefs more accurately espouse a philosophy 

         and/or way of life rather than a "religion."  The district court 

         did not err in prohibiting Meyers' religious freedom defense.


                           II.  Sufficiency of Indictment

              Meyers declares that the district court erred in failing to 

         grant his motion to dismiss the indictment on the grounds that it 

         was legally insufficient.  Meyers reasons that Agent Freel's 

         testimony was insufficient to support the indictment because it 

         consisted almost entirely of a hearsay recitation of false 

         statements made by Jones and that with the deletion of this false

         information from the indictment, there is insufficient evidence to 

         form the basis of the indictment.  We review the sufficiency of an 

         indictment de novo.  United States v. Bolton, 68 F.3d 396, 400 

         (10th cir. 1995), cert. denied, ___ U.S. ___ (1996).

              As a preliminary matter, "the validity of the indictment is 

         not affected by the character of the evidence considered."   United 

         States v. Calandra, 414 U.S. 338, 344-45 (1974).

                   If indictments were to be held open to challenges on 
              the ground that there was inadequate or incompetent 
              evidence before the grand jury, the resulting delay would 
              be great indeed.  The result of such a rule would be that 
              before trial on the merits a defendant could always 
              insist on a kind of preliminary trial to determine the 
              competency and adequacy of the evidence before the grand 
              jury.  This is not required by the Fifth Amendment.  An 
              indictment returned by a legally constituted and unbiased 
              grand jury, like an information drawn by a prosecutor, if 
              valid on its face, is enough to call for trial of the 
              charge on the merits.  The Fifth Amendment requires 
              nothing more.

         Costello v. United States, 350 U.S. 359, 363 (1956) (footnotes 

         omitted).  Therefore, we are concerned only with whether an 

         indictment meets the minimal constitutional standards which we 

         determine by practical rather than technical considerations. 

         Bolton, 68 F.3d at 400; United States v. Dahlman, 13 F.3d 1391, 

         1400 (10th Cir. 1993), cert. denied, ___ U.S. ___ (1994).  

              Generally, an indictment is sufficient "`if it contains the 

         elements of the offense charged, putting the defendant on fair

         notice of the charge against which he must defend, and if it 

         enables a defendant to assert an acquittal or conviction in order 

         to prevent being placed in jeopardy twice for the same offense.'" 

         Bolton, 68 F.3d at 400 (quoting United States v. Staggs, 881 F.2d 

         1527, 1530 (10th Cir. 1989), cert. denied, 493 U.S. 1020 (1990)).

              In this case, the indictment adequately informed Meyers of the 

         charges against him; therefore, we hold it was valid on its face 

         and cannot be attacked further.  Notably, because conspiracy does 

         not require the government to establish any overt acts, Meyers' 

         contention that the overt acts alleged in the indictment were false 

         is irrelevant.  See United States v. Johnson, 42 F.3d 1312, 1319 

         (10th Cir. 1994) ("Under the drug conspiracy statute, the 

         government need not prove the commission of any overt act in 

         furtherance of the conspiracy.") (citing  United States v. Shabani, 

         115 S. Ct. 382, 385 (1994)).


                       III.  Improper Amendment of Indictment

              Meyers contends that the district court erred in denying his 

         motion to dismiss on the grounds that the indictment was improperly 

         amended by the proof at trial.  Meyers asserts that the government 

         presented facts at trial which were materially and substantially 

         different from the facts presented to the grand jury and that this

         variance is reversible error.

              A variance arises when the evidence presented at trial 

         establishes facts which are different from those alleged in the 

         indictment.  Dunn v. United States, 442 U.S. 100, 105 (1979); 

         United States v. Powell, 982 F.2d 1422, 1431 (10th Cir. 1992), 

         cert. denied, 507 U.S. 946 (1993).  However, no variance occurs 

         when the government's theory on which the case was tried is the 

         same as that charged in the indictment.  Dunn, 442 U.S. at 106.  

         Moreover, even if a variance exists, we will not reverse unless the 

         variance affects the defendant's substantial rights.  Powell, 982 

         F.2d at 1431; United States v. Harrison, 942 F.2d 751, 759 (10th 

         Cir. 1991) ("variance did not affect defendant's right to a fair 


              Here, the indictment charged that:

                   On or about between January, 1994, through and 
              including November, 1994, in the District of Wyoming and 
              elsewhere, DAVID MEYERS, MITCHELL MEYERS, and RICHARD 
              FEDERICO, Defendants herein, and Carl Jones, did 
              intentionally, knowingly, and unlawfully combine, 
              conspire, confederate, and agree together, and with other 
              persons, both known and unknown to the Grand Jury, to 
              possess with the intent to distribute, and to distribute, 
              marijuana, a Schedule I controlled substance, in 
              violation of 21 U.S.C.  841(a)(1) and 841(b)(1)(C).

         (ROA, Vol. I, Tab 1 at 1-2).  The indictment further alleged that 

         marijuana was obtained from Arizona, Texas, and New Mexico, from

         Mitchell Meyers, Federico, and others at the direction of Meyers 

         for distribution by him, id. at 2; Meyers would either personally 

         transport the marijuana or arrange for others to do so, id.; and 

         Meyers introduced Jones, or made arrangements for the introduction, 

         to Meyers' sources of marijuana with the intent that Jones begin 

         transporting marijuana for him.  Id. at 3.

              This is the same theory on which the case was tried and 

         submitted to the jury.  Therefore, we hold that there was no 

         variance between the charging indictment and the evidence 

         established at trial.  The fact that the government presented 

         additional evidence of the existence of a middleman in the 

         conspiracy, Recore, who was unknown to the grand jury, is 


              In addition, Meyers has failed to assert how any alleged 

         variance affected a substantial right.  In fact, he could not do so 

         since he was aware at all times of the existence of Recore and 

         Recore's role in the alleged conspiracy.  Therefore, he could not 

         be prejudiced or denied a fair trial merely because the government 

         uncovered another member of the conspiracy who agreed to cooperate.


                                  IV.  Due Process

              Meyers contends that he was denied due process by the

         government's failure to timely inform him and the court of the fact 

         that Jones' pre-trial statements, which were presented to the grand 

         jury through Agent Freel's testimony, were false.  Meyers asserts 

         that where an indictment is obtained by false testimony to the 

         grand jury, due process requires the government to immediately 

         inform the court and opposing counsel and, if the "perjury" is 

         material, to inform the grand jury.  Meyers maintains that the 

         proper remedy is to dismiss the indictment.

              In order to prevail on a due process claim, a defendant must 

         show actual prejudice.  A due process violation "require[s] a 

         specific showing of identifiable prejudice of the accused affecting 

         his substantial rights."  United States v. Comosona, 614 F.2d 695, 

         697 n.3 (10th Cir. 1980) (citations omitted).

              It is undisputed that although the indictment contained false 

         statements based on Jones' false representations to Agent Freel, 

         there was no actual perjury committed and the government did not 

         know the statements were false at the time they were presented to 

         the grand jury.  Therefore, this is clearly not a case involving 

         any type of prosecutorial misconduct, abuse, bad faith, or 


              Additionally, Meyers has failed to show how he was prejudiced 

         as a result of this infirmity.  Indeed, it is hard to imagine how

         Meyers could be prejudiced by any alleged failure of the government 

         to inform him of Jones' false statement inasmuch as Jones' false 

         statement concerned Meyers' actions.  Meyers should know what he 

         did and did not do in the course of the conspiracy.  In fact, if 

         Recore's trial testimony is to be believed, then it is Meyers who 

         is to blame for the inaccurate testimony presented to the grand 

         jury, because it was he who told Jones to implicate him as the main 

         conspirator.   See (ROA, Vol. IV at 369).  Therefore, we hold that 

         Meyers was not denied due process and that the extraordinary remedy 

         of dismissing the indictment shall not be imposed here.


                          V.  Acceptance of Responsibility

              Meyers contends that the district court erred in failing to 

         award him a two point reduction in his offense level for acceptance 

         of responsibility under U.S.S.G.  3E1.1(a).  Meyers states that he 

         is entitled to a two point reduction in his offense level based on 

         his pre-trial statements "clearly demonstrating a recognition and 

         affirmative acceptance of personal responsibility for his criminal 


              To receive such a reduction, the defendant must prove by a 

         preponderance of the evidence that he has clearly demonstrated 

         acceptance of responsibility for his offense.  United States v.

         Ivy, 83 F.3d 1266, 1292 (10th Cir. 1996).  "Whether the defendant 

         has clearly demonstrated acceptance of responsibility is a factual 

         question we review only for clear error."  Id.  See United States 

         v. Robertson, 45 F.3d 1423 (10th Cir.), cert. denied, ___ U.S. ___ 

         (1995).  In so doing, "we remain mindful that `[t]he sentencing 

         judge is in a unique position to evaluate a defendant's acceptance 

         of responsibility.  For this reason the determination of the 

         sentencing judge is entitled to great deference on review.'"  Ivy, 

         83 F.3d at 1292-93.

              In general, pleading not guilty and requiring the government 

         to prove guilt at trial demonstrates denial of responsibility, 

         regardless of how easily the government can prove guilt.  United 

         States v. Portillo-Valenzuela, 20 F.3d 393, 394-95 (10th Cir.), 

         cert. denied, ___ U.S. ___ (1994).  However, in "rare situations," 

         a defendant may deserve the reduction for acceptance of 

         responsibility even though he goes to trial.  Id. at 394; U.S.S.G. 

         3E1.1 note 2.

              Based on our review, we hold that this is not one of those 

         "rare situations."  Meyers' pre-trial testimony at the hearing 

         regarding his religious freedom defense did not rise to the level 

         of an acceptance of responsibility for the criminal conduct charged 

         in the indictment.  Although he admitted that he used marijuana and

         distributed it to others as part of the Church of Marijuana, he 

         specifically denied distributing marijuana to Jones and he refused 

         to answer other questions specifically relating to the charges in 

         the indictment.  (ROA, Vol. III at 54).  In fact, Meyers testified 

         that he actively tried to discourage Jones from trafficking in 

         marijuana.  Id. at 62, 64, and 65.  Therefore, the government had 

         to prove guilt at trial and, in essence, specifically disprove 

         Meyers' statements.  Accordingly, the district court did not err in 

         denying  Meyers a two point reduction in his offense level for 

         acceptance of responsibility.(3)


                             VI.  Quantity of Marijuana

              Meyers maintains that the district court erred in calculating 

         the quantity of marijuana attributable to him.  He asserts that 

         the district court erred by including ten pounds of marijuana 

         related to Connie Griffis, by double counting three pounds of 

         marijuana involved in a transaction on July 19, 1994, and by over

         (3)          The government asserts that Meyers was offered a 
         conditional plea that would have preserved his right to pursue 
         any legal issues he wished under the RFRA.  This would also 
         supports our conclusion that the district court's denial of a 
         reduction in offense level for acceptance of responsibility was 
         not error; however, we cannot find any evidence in the record to 
         support the government's assertion. 

         counting three pounds of marijuana from Federico's testimony.

              The government has the burden of proving the quantity of 

         marijuana for sentencing purposes by a preponderance of the 

         evidence.  United States v. Garcia, 994 F.2d 1499, 1508 (10th Cir. 

         1993); United States v. Ortiz, 993 F.2d 204, 207 (10th Cir. 1993). 

         "We review this determination under a clearly erroneous standard, 

         and we will not disturb it unless it has no support in the record, 

         or unless after reviewing all the evidence we are firmly convinced 

         that an error has been made."  United States v. Cook, 949 F.2d 289, 

         296 (10th Cir. 1991).

              The district court found that Meyers' relevant conduct in the 

         conspiracy involved 83 pounds of marijuana or 38 kilograms; 

         therefore his base offense level was 18.  If we accept Meyers' 

         assertions as true his relevant conduct would be 67 pounds or 30 

         kilograms.  Under U.S.S.G.  2D1.1(c) 20 kilograms (44 pounds) to 

         40 kilograms (88 pounds) of marijuana correlates to a base offense 

         level of 18.(4)  Therefore, Meyers' base offense level under his own 

         calculations would also be 18.  Thus, this issue is without merit.


         (4)          Under the measurement conversion table provided, one 
         pound of marijuana equals 0.4536 kilograms.  U.S.S.G.  2D1.1 
         Application Note 10.

                               VII.  Bail and Release

              Meyers contends that the district court erred in failing to 

         address his motions for pretrial release, in denying him pretrial 

         release, and in failing to address his motion for post-conviction 

         release pending appeal.  

              On May 19, 1995, and on June 2, 1995, the government filed a 

         Motion for a Detention Hearing and invoked the rebuttable 

         presumption under 18 U.S.C.  3142(e) that no conditions of release 

         will assure defendant's appearance and the safety of the community. 

         On July 10, 1995, Meyers was arrested in Colorado apparently on the 

         warrant issued in Wyoming on May 19, 1995.  On July 11, 1995, 

         Meyers appeared before Colorado Magistrate Judge O. Edward 

         Schlatter and was remanded to the custody of the United States 

         Marshall.  On July 14, 1995, Meyers' waived his right to an 

         identity hearing with no right to a preliminary hearing.  At the 

         same time, Colorado Magistrate Judge Richard M. Borcher found that 

         Meyers was a danger to the community and ordered that he be 

         detained and transferred to the charging district, Wyoming.

              Meyers was arraigned in the District Court for the District of 

         Wyoming on August 11, 1995.  The minutes of the arraignment reflect 

         that a motion for bond was to be filed and heard at a later date; 

         however, no date was set.  On August 14, 1995, Meyers filed a

         Motion for Pretrial Release and on September 12, 1995, Meyers filed 

         a Second Motion for Pretrial Release.

              Trial commenced October 2, 1995, and the jury returned a 

         verdict of guilty on both counts on October 5, 1995.  That 

         afternoon, the district court held a hearing on Meyers' outstanding 

         motions for pretrial release.  The district court denied the 

         motions on the grounds that Meyers' has a history of failing to 

         appear and that he was a flight risk especially since he had 

         already been convicted.  (ROA, Supp. Vol. I at 8 & 12).

              On December 1, 1995, Meyers was sentenced to 33 months 

         imprisonment and three years of supervised release.  On December 

         12, 1995, Meyers filed a notice of appeal and, simultaneously, a 

         motion for release pending appeal.  There has been no ruling on 

         Meyers' December 12, 1995, motion for release by either the 

         district court or this court.

                               A.  Pretrial Release  

              Under 18 U.S.C.  3142(f)(1)(C), the judicial officer shall 

         hold a detention hearing upon motion by the government in a case 

         that involves an offense for which a maximum term of imprisonment 

         of ten years or more is prescribed in the Controlled Substances 

         Act, 21 U.S.C.  801 et. seq.  "The hearing shall be held 

         immediately upon the person's first appearance before the judicial

         officer unless that person, or the attorney for the Government, 

         seeks a continuance."  21 U.S.C.  3142(f).

              The district court failed to hold a pretrial detention hearing 

         in a timely manner.(5)  While the failure to provide Meyers with the 

         hearing demanded by the statute is unfortunate, it is not a 

         sufficient reason to require mandatory release of the defendant. 

         United States v. Montalvo-Murillo, 495 U.S. 711 (1990).  By the 

         same token, it is not a sufficient justification to reverse Meyers' 

         otherwise valid convictions.  See also United States v. Rivera, 837 

         F.2d 906, 925 (10th Cir. 1988), vacated, 900 F.2d 1462 (10th Cir. 

         1990) (failure of the district court to comply with statutory 

         requirements is not sufficient reason to dismiss all charges).

              The district court erred in failing to timely address Meyers' 

         pretrial release motions.  However, because Meyers was convicted on 

         both counts, the error was harmless and the issue is now moot.  See 

         Montalvo-Murillo, 495 U.S. at 722 (harmless error analysis applies 

         to  3142 review).

                               B.  Release on Appeal

         (5)          The district court was untimely because (1) it did not 
         hold a detention hearing within five days of Meyers' initial 
         appearance in its court, see 18 U.S.C.  3142(f), and (2) if 
         Meyers' motions for a pretrial release are construed as "appeals" 
         of the Colorado magistrate judge's denial of bond, the motions 
         were not determined promptly as required by 18 U.S.C.  3145(b).

              Since the detention hearing occurred after Meyers was 

         convicted and the district court based its ruling, in part, on the 

         fact that Meyers had already been convicted, we will treat Meyers' 

         December 12, 1995, motion as an appeal to this court of the 

         district court's denial of post-conviction release under 18 U.S.C. 

          3145(c).(6)  Our "review of detention or release orders is plenary 

         as to mixed questions of law and fact and independent, with due 

         deference to the district court's purely factual findings."  United 

         States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991).

              In United States v. Affleck, 765 F.2d 944, 952-53 (10th Cir. 

         1985), we held that in order to grant bail pending appeal, a court 

         must find that (1) the defendant has met his burden of proving by 

         clear and convincing evidence that he is not likely to flee or pose 

         a danger to the safety of any other person or to the community if 

         released under  3143(b)(1), and (2) he has established by a 

         preponderance of the evidence that the appeal is not for purpose of 

         delay, the appeal raises a substantial question of law or fact, and 

         if that substantial question is determined favorably to defendant

         (6)          Although the filing of a notice of appeal usually 
         divest the district court of further jurisdiction, the initial 
         determination of whether a convicted defendant is to be released 
         pending appeal is to be made by the district court.  United 
         States v. Affleck, 765 F.2d 944, 954 (10th Cir. 1985).  See also 
         Fed. R. App. P. 9 Advisory Committee Notes, Subdivision (b).

         on appeal, the decision is likely to result in reversal or an order 

         for a new trial of all counts on which imprisonment has been 


              Here, the district court found that Meyers had a history of 

         failing to appear and that he posed a significant flight risk.  We 

         conclude that the district court's findings are amply supported by 

         the record and that Meyers has failed to establish that he has 

         satisfied the criteria required for release stated in  3143(b). 

         Therefore, the district court's denial of bail pending appeal is 



         No. 95-8079 -- UNITED STATES v. MEYERS

         BRORBY, Circuit Judge, respectfully dissenting.


              Because I do not believe it is the proper role of the 

         court to establish a factor-driven test to be used to define 

         what a religion is, I respectfully dissent from my colleagues. 

         The ability to define religion is the power to deny freedom of 

         religion.  The ethereal and personal nature of religion has 

         posed problems for most courts that have attempted to define 

         it.  See Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir. 1985) 

         ("The determination of whether a belief is religious or not is 

         an extremely delicate task which must be approached with 

         caution."); Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3rd 

         Cir. 1981) ("[j]udges are ill-equipped to examine the breadth 

         and content of an avowed religion"), cert. denied, 456 U.S. 

         908 (1982); United States v. Kauten, 133 F.2d 703, 708 (2d 

         Cir. 1943) (recognizing that the definition of religion "is 

         found in the history of the human race and is incapable of 

         compression into a few words"); see also Brown v. Dade 

         Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977) (judges 

         filed two concurrences and two dissenting opinions in a case

         attempting to define religion in order to determine whether a 

         religious school's policy of racial discrimination was 

         religious or social or political in nature), cert. denied, 434 

         U.S. 1063 (1978).


              In Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972), the 

         Supreme Court held that religious beliefs are distinct from 

         philosophical and personal choices but failed to provide a 

         test or a definition against which lower courts could hold the 

         religious claims of petitioners to determine whether the 

         claims warrant constitutional protection.  Many courts have 

         felt compelled by the distinction made in Yoder to establish 

         a definition of religion.  See United States v. Ward, 989 F.2d 

         1015, 1017 (9th Cir. 1992); Quaring v. Peterson, 728 F.2d 

         1121, 1123 (8th Cir. 1984), aff'd, 472 U.S. 478 (1985); 

         Africa, 662 F.2d at 1031.  We, however, had declined to do so 

         until now.  In Werner v. McCotter, 49 F.3d 1476, 1479 n.1 

         (10th Cir.), cert. denied, 115 S. Ct. 2625 (1995), we 

         recognized the distinction in Yoder and then found "[a] 

         plaintiff, however, need not hew to any particular religious

         orthodoxy; it is enough for the plaintiff to demonstrate that 

         a government has interfered with the exercise or expression of 

         her or his own deeply held faith."  Id. at 1480.  I believe an 

         approach that prevents the courts from evaluating the 

         orthodoxy and expression of the individual is the approach 

         most in keeping with the mandates of the Constitution and the 

         Supreme Court.  For, it seems to me that the free exercise of 

         religion which we are all guaranteed by the First Amendment 

         necessarily includes the rights of individuals to define their 

         own religion.  Accordingly, it is an unproductive and 

         unnecessarily invasive exercise for the courts to attempt to 

         evaluate an individual's religious claims and practices 

         against any set standard of preconceived notions of what types 

         of religious beliefs are valid of being recognized by the 

         courts.  In fact, in the conscientious objector context, the 

         Supreme Court has held

              "Men may believe what they cannot prove.  They may 
              not be put to the proof of their religious doctrines 
              or beliefs.  Religious experiences which are as real 
              as life to some may be incomprehensible to others." 
              Local boards and courts in this sense are not free 
              to reject beliefs because they consider them 

         United States v. Seeger, 380 U.S. 163, 184-85 (1965) (quoting United States v. Ballard, 

         322 U.S. 78, 86 (1944)).  By attempting to evaluate another's religion with a factor-driven 

         test we have essentially gutted the Free Exercise Clause of its meaning and are ignoring 

         the Supreme Court's cautionary words that a person's views can be "incomprehensible" to 

         the court and still be religious in his or her "own scheme of things."  Id.


              In an early opinion addressing the Constitutional meaning of "religion," the 

         Supreme Court first recognized that the word religion is not defined in the Constitution 

         and then turned to Thomas Jefferson's views that

              "religion is a matter which lies solely between man and his God; that he 
              owes account to none other for his faith or his worship; that the legislative 
              powers of the government reach actions only, and not opinions, -- I 
              contemplate with sovereign reverence that act of the whole American 
              people which declared that their legislature should 'make no law respecting 
              an establishment of religion or prohibiting the free exercise thereof,' thus 
              building a wall of separation between church and State.  Adhering to this 
              expression of the supreme will of the nation in behalf of the rights of 
              conscience, I shall see with sincere satisfaction the progress of those 
              sentiments which tend to restore man to all his natural rights, convinced he 
              has no natural right in opposition to his social duties."
         Reynolds v. United States, 98 U.S. 145, 164 (1878).  The Court then held that Jefferson's 

         words "may be accepted almost as an authoritative declaration of the scope and effect of 

         the amendment thus secured.  Congress was deprived of all legislative power over mere 

         opinion, but was left free to reach actions which were in violation of social duties or

         subversive of good order."  Id.; see also, Ballard, 322 U.S. at 87 (noting the intent of the 

         "fathers of the Constitution" to provide for the "the widest possible toleration of 

         conflicting views" and protection of religious beliefs, even those deemed incredible or 

         preposterous by most people); Davis v. Beason, 133 U.S. 333, 342 (1890) ("[w]ith man's 

         relations to his Maker and the obligations he may think they impose, and the manner in 

         which an expression shall be made by him of his belief on those subjects, no interference 

         can be permitted").  The Court expressed the same sentiment in Cantwell v. Connecticut, 

         310 U.S. 296, 303-04 (1940), when it held

              The constitutional inhibition of legislation on the subject of religion has a 
              double aspect.  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.  The first is absolute but, in the nature of things, the second 
              cannot be.
         The absoluteness of the freedom to believe and the freedom to exercise a chosen form of 

         religion is significantly diluted by a court sponsored inquiry into what the individual 

         believes and how he or she expresses those beliefs.  Although the factors provided by the 

         majority opinion arguably are content neutral, they still require an individual to provide 

         evidence concerning what he or she believes and how he or she expresses those beliefs so 

         that the courts may then judge whether the beliefs and practices are acceptable enough to 

         be labeled a "religion" under our definition.  Such scrutiny clearly usurps the individual's 

         right to believe and to express those beliefs however he or she chooses.



              The Supreme Court has also cautioned that a determination of what is a religious 

         belief or practice is "not to turn upon a judicial perception of the particular belief or 

         practice in question; religious beliefs need not be acceptable, logical, consistent or 

         comprehensible to others in order to merit First Amendment protection."  Thomas v. 

         Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981).   Furthermore, 

         "it is no business of courts to say that what is a religious practice or activity for one group 

         is not religion under the protection of the First Amendment."  Fowler v. Rhode Island, 

         345 U.S. 67, 70 (1953); see also Hernandez v. Commissioner, 490 U.S. 680, 693 (1989) 

         ("under the First Amendment, the IRS can reject otherwise valid claims of religious 

         benefit only on the ground that a taxpayers' alleged beliefs are not sincerely held, but not 

         on the grounds that such beliefs are inherently irreligious").  By applying a broad factor-

         driven test as advocated by the majority opinion, the subjective perceptions of the court 

         are necessarily invoked in evaluating whether what the individual claims to be religious is 

         indeed religious.  It also requires the court to judge the practices of the individual to see if 

         they are indeed "religious."  This test clearly violates the spirit, if not the intent, of the 

         First Amendment.


              The Second Circuit relied on the works of American philosopher William James to 

         define religion as:

              "the feelings, acts, and experiences of individual men in their solitude, so 
              far as they apprehend themselves to stand in relation to whatever they may 
              consider the divine."  W. James, The Varieties of Religious Experience 31

              (1910).  In referring to an individual's relation to what he considers the 
              divine, Professor James used the word 'divine' in its broadest sense as 
              denoting any object that is godlike, whether it is or is not a specific deity. 
              Id. at 34.  Therefore, under the Religion Clauses, everyone is entitled to 
              entertain such view respecting his relations to what he considers the divine 
              and the duties such relationship imposes as may be approved by that 
              person's conscience, and to worship in any way such person thinks fit so 
              long as this is not injurious to the equal rights of others.
         United States v. Moon, 718 F.2d 1210, 1227 (2d Cir. 1983), cert. denied, 466 U.S. 971 

         (1984).  I believe this definition comes the closest to capturing the inherently elusive, 

         spiritual and personal nature of religion.  I also believe that under such a definition it is 

         inappropriate, if not impossible, to evaluate or analyze the religious beliefs of an 

         individual under a factor-driven approach.  The appropriateness of the above definition 

         lies in its openness, which also makes it unworkable as a standard for those seeking 

         concrete guidance in this area.


              It seems to me the better practice is not to engage in any type of an attempt to 

         define religion and instead to assume, without deciding, the validity of an individual's 

         sincerely held religious beliefs for purposes of constitutional protection.  See Smith v. 

         Board of Sch. Comm'rs of Mobile County, 827 F.2d 684, 689 (11th Cir. 1987) (assuming 

         secular humanism is a religion for purposes of the Establishment Clause); United States v. 

         Middleton, 690 F.2d 820, 824 (11th Cir. 1982) (assuming Ethiopian Zion Coptic Church 

         is a valid religion), cert. denied, 460 U.S. 1051 (1983); see also Jones v. Bradley, 590 

         F.2d 294, 296-97 (9th Cir. 1979) (assuming members of the Universal Life Church are

         entitled to First Amendment protection).  Under this approach if an individual makes a 

         claim that a government law substantially burdens his or her sincere religious beliefs I 

         would assume the validity of the religion without analyzing the tenets or practices of the 

         religion to see if they fit some preconceived vision of what a religion is.  This approach 

         may seem radical; however, it is the only way we can assure an individual the absolute 

         freedom to worship what he or she chooses in the way in which he or she chooses.  It is 

         important to note that such a practice would not send us down a "slippery slope" or create 

         a mass shield which any criminal could use to thwart prosecution for crimes done in the 

         name of religion.  It has never been the law in this country that religious beliefs prevent 

         the government from regulating criminal or other harmful actions of individuals. 

         Cantwell, 310 U.S. at 303.  Under the Religious Freedom and Restoration Act, after 

         raising the defense of religion, the individual must show that his or her religious beliefs 

         are sincerely held and were substantially burdened.  If this showing is made, then the 

         government may still prevail if it shows that such burden is necessary to further a 

         compelling government interest and that the law is the least restrictive means of 

         furthering that interest.  42 U.S.C.  2000bb-1.  This law enforces the absolute freedom of 

         the individual to believe and worship whatever he or she chooses, but clearly prevents 

         him or her from freely acting on these beliefs in ways that are harmful to others.


              In this case, I would assume the validity of Mr. Meyers' religious beliefs and 

         affirm the district court's findings that these beliefs are sincerely held and substantially

         burdened by the laws in question.  Although I am confident that the government will have 

         no problem meeting its burden of proof, Olsen v. DEA, 878 F.2d 1458, 1462-63 (D.C. 

         Cir. 1989) (government has a compelling interest in regulating the use of marijuana and is 

         not required to accommodate sacremental use), cert. denied, 495 U.S. 906 (1990), it has 

         not yet been given an opportunity to do so.  Therefore, in accordance with the 

         requirements of 42 U.S.C.  2000bb-1, I would reverse the district court's findings that 

         Mr. Meyers' sincerely held beliefs are not religious and I would remand to allow the 

         government an opportunity to meet its burden of showing that the laws involved serve a 

         compelling government interest and are the least restrictive means of meeting that 

         interest.  See United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996).


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