PUBLISH
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. )
______
APPEAL FROM THE UNITED STATES DISTRICT COURT
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).
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)
(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.
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
(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
304.
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
sense.
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.
2000bb-1(b)).
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
1035.
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
times.
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
proselytizing.
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
"medicine."
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
trial").
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
immaterial.
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
vindictiveness.
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
conduct."
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
imposed.
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
affirmed.
AFFIRMED.
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
"incomprehensible."
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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