STATE OF NEW JERSEY VS NJWEEDMAN.COM

 

 

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CONSTITUTIONAL CHALLENGE BRIEF

4/20/2011

 

 

 

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                              SUPERIOR COURT OF NEW JERSEY

                              LAW DIVISION, BURLINGTON

                              COUNTY (CRIMINAL DIVISION)

                              INDICTMENT NO. 2010—08-0866-I

 

                               

 

_________________________

                                  CRIMINAL ACTION  

STATE OF NEW JERSEY,    )         

 

  Plaintiff,            )     Before the Honorable

                              Charles A. Delehey, J.S.C.

   -v-                  )

 

EDWARD R. FORCHION,     )

    

  Defendant.            )

_________________________ 

 

 

__________________________________________________

 

BRIEF AND APPENDIX IN SUPPORT

OF PRETRIAL MOTIONS ON BEHALF

OF DEFENDANT EDWARD R. FORCHION

___________________________________________________ 

 

 

                                EDWARD R. FORCHION, Pro Se

                                5453 Corteen Place #1

                                Studio City, CA 91607

 

                                JOHN VINCENT SAYKANIC,

                                ESQ., Pro Bono

                                1135 Clifton Avenue

                                Clifton, New Jersey 07013

                                TEL: (973) 472-5863

                                FAX: (973) 614-0386

 

Edward R. Forchion, Pro Se

John Vincent Saykanic, Esq., Pro Bono

On the Brief

 

 

TABLE OF CONTENTS

                                                   Page No.

 

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . .  1

 

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . .  2

 

LEGAL ARGUMENT:

 

POINT I

 

THE INDICTMENT MUST BE DISMISSED WITH

PREJUDICE SINCE THE CATEGORIZATION OF

MARIJUANA AS A SCHEDULE I DRUG IS

UNCONSTITUTIONAL AND VIOLATES DUE

PROCESS AND EQUAL PROTECTION . . . . . . . . . . . . 5

 

POINT II

N.J.S.A. 2C:35-5A(1) AND B.10(A)

ARE UNCONSTITUTIONAL AS THEY VIOLATE

THE DEFENDANT’S RIGHTS UNDER THE RELIGIOUS

FREEDOM RESTORATION ACT AND THE FIRST

AMENDMENT ESTABLISHMENT CLAUSE, AND

ARTICLE 1, PARAGRAPH 4 OF THE NEW JERSEY

CONSTITUTION; SINCE PEYOTE IS A RECOGNIZED

RELIGIOUS EXEMPTION ALONG WITH ANOTHER

SCHEDULE I SUBSTANCE (AYAHUASCA TEA); THE

DEFENDANT, A PRACTISING RASTAFARIAN,

MUST BE AFFORDED AN EXEMPTION FOR HIS

RELIGIOUS SACRAMENT GANJA (MARIJUANA) . . . . . . . 14

 

SUBPOINT I

 

THE DEFENDANT’S SACRAMENTAL USE OF

CANNABIS IS PROTECTED UNDER THE

RELIGIOUS FREEDOM RESTORATION

ACT (RFRA) . . . . . . . . . . . . . . . . . . 22

 

SUBPOINT II

 

THE STATE OF NEW JERSEY’S INTERFERENCE

WITH THE DEFENDANT’S SACRAMENTAL USE OF

MARIJUANA SUBSTANTIALLY BURDENS HIS

EXERCISE OF RELIGIOUS FREEDOM . . . . . . . .  30

 

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SUBPOINT III

 

THE STATE OF NEW JERSEY’S ACTIONS

HAVE VIOLATED DEFENDANT’S FIRST

AMENDMENT RIGHTS . . . . . . . . . . . . . . . 36

 

 

POINT III

 

N.J.S.A. 2C:35-5A(1) AND B.10(A)

ARE UNCONSTITUTIONAL AS THEY VIOLATE

THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION SINCE PEYOTE (A

SCHEDULE I SUBSTANCE) IS A RECOGNIZED

RELIGIOUS EXEMPTION ALONG WITH ANOTHER

SCHEDULE I SUBSTANCE (AYAHUASCA TEA); THE

DEFENDANT, A PRACTISING RASTAFARIAN,

MUST BE AFFORDED THE SAME PROTECTION . . . . . . .  43

 

POINT IV

 

THE MARIJUANA STATUTES ARE UNCONSTITUTIONAL

DUE TO VAUGENESS, INDEFINITENESS AND OVER-

BREADTH; THEY ALSO VIOLATE THE UNITED STATES

CONSTITUTION’S PROHIBITION AGAINST BILL OF

ATTAINDERS; AT THE VERY LEAST, DEFENDANT

SHOULD BE ALLOWED TO PRESENT EXPERT

TESTIMONY CONCERNING THIS ISSUE . . . . . . . . . . 48

 

POINT V

N.J.S.A. 2C:35-5A.(1) AND 2C:35-5B.

(10)(A) ARE UNCONSTITUTIONAL ON THE

GROUNDS OF “MEDICAL NECESSITY” OR THE

DEFENDANT IS EXEMPT FROM PROSECUTION

DUE TO “MEDICAL NECESSITY”; THE

INDICTMENT MUST BE DISMISSED WITH PREJUDICE . . . . 55

 

POINT VI

 

THE DEFENDANT SHOULD BE ALLOWED

TO PRESENT EXPERT TESTIMONY ON

THE ISSUES RAISED IN THIS BRIEF . . . . . . . . . . 59

 

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POINT VII

THE INDICTMENT SHOULD BE DISMISSED WITH

PREJUDICE IN THE INTEREST OF JUSTICE . . . . . . .  62

 

     POINT VIII

 

INTERNATIONAL LAW AND TREATIES

PROHIBIT THE INTERFERENCE WITH

DEFENDANT’S RELIGIOUS USE OF CANNABIS . . . . . . . 70

 

    

 

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 82  

 

APPENDIX:

 

Indictment (filed August 31, 2010) . . . . . . . . .  Da1-3

New Jersey State Police Investigation Report (dated

  April 10, 2010) . . . . . . . . . . . . . . . . . . Da4-7

Search Warrant (dated April 1, 2010) . . . . . . . . .  Da8

Certified Laboratory Report (dated May 11, 2010) . . .  Da9

Motor Vehicle Summonses (dated April 1, 2010) . . . Da10-11

California Medical Marijuana Card/Letter (dated

  October 6, 2009) . . . . . . . . . . . . . . . . . . Da12

Article “Federal agency recognizes pot for

  Medical use” (dated March 27, 2011) . . . . . . . .  Da13

State-by-state Medical Marijuana Summary Chart with

  laws, fee, possession limits, etc. (located at   http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881&print=true . . . . . . . . . . . . . .  Da14-31

NORML article dated March 19, 2002; “Special

  Release 30 Years After Nixon’s Marijuana

  Commission Advocated Decriminalization,

  Report Findings Are Still Valid Nixon Never

  Read His Own Report” . . . . . . . . . . . . . . . . Da32

Defendant Edward Forchion’s Camden County Pro Se

  Motion, Inter Alia, Dismissal of Indictment

  Based Upon Freedom Of Religion; dated June 23,

  2000) . . . . . . . . . . . . . . . . . . . . . . Da33-44

State v. Hilkevich, (App. Div. Docket No. A-3632-00T3,

  decided March 5, 2003) . . . . . . . . . . . . .  Da45-56

Washington Post article by Carrie Johnson, dated

  October 20, 2009 -- “U.S. eases stance on medical

  Marijuana” . . . . . . . . . . . . . . . . . . .  Da57-59

 

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Federal Administrative Law Judge Francis L. Young

 Opinion In The Matter of: Marijuana Rescheduling Petition Docket No. 86-22 (1988) . . . . . . . . . . . . . . Da61-90

United States v. Edward Forchion Opinion . . . . .  Da91-97

Forchion v. Intensive Supervised Parole Opinion,

  240 F.Supp. 2d 302 (D.N.J. 2003) . . . . . . .

 

 

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 PROCEDURAL HISTORY

     On April 1, 2010, in Mount Holly Township, the defendant Edward R. Forchion was arrested, charged and subsequently indicted for possession of a controlled dangerous substance (marijuana) in a quantity of one ounce or more but less than five pounds, contrary to N.J.S. 2C:35-5b(1) (third degree) (Count One), and possession of a controlled dangerous substance (marijuana) in a quantity of more than 50 grams, contrary to N.J.S. 2C:35-10a(3) (fourth degree) (Count Two). (Da1-3).

     Motor vehicle summonses were issued for failure to observe a signal, driving while suspended, cracked windshield, and cds in motor vehicle. (Da10-11).

     A motion to suppress evidence was filed and, following an evidentiary hearing, was denied on March 15, 2011.

 

 

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STATEMENT OF FACTS

     At this stage of the proceedings, there has been no trial testimony.  The State’s recitation of facts (as given at the suppression motion) is reflected in the police report of New Jersey State Trooper Ken Rayhon.  On April 1, 2010, Trooper Rayhon was on patrol on State Highway 38 West in Mount Holly Township when he approached the intersection at Savory Way “where multiple vehicle’s (sic) were stopped in the right lane at a red light.” (Da5-6).  Trooper Rayhon observed a vehicle (driven by defendant” allegedly “drive forward into the intersection crossing the painted white stop bar with all four tires.” (Da6).  This vehicle was a black Pontiac Grand Am bearing NJ registration YVC47U. (Da6).  The vehicle was a rental car with the name Chanel Forchion on the rental agreement. (Da6).

Trooper Rayhon stopped the vehicle, identified himself, and asked the defendant for his credentials.  The defendant allegedly started asking Trooper Rayhon if he “could cut him a break.” (Da6).  The defendant stated “that he owed child support, and did not have a valid license.” Id.  Trooper Rayhon noticed “an additional motor vehicle violation, cracked windshield (3-74).” Id.

 

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While speaking with defendant, Trooper Rayhon “detected the odor of burnt marijuana emanating from within the vehicle.” Id.  As Trooper Rayhon “scanned the interior of the vehicle” he “observed a multi-colored smoking pipe in plain view on the floor behind the driver’s seat.” Id.

Trooper Rayhon asked defendant to hand him the pipe and the defendant complied. Id.  The defendant was arrested “for drug paraphernalia, and the odor of burnt marijuana.” Id.  A search of defendant yielded “approximately $2,000 in U.S. currency in his right front pants pocket, but no contraband was found.” Id.  The amount was found to be $2,059.00. (Da7).

A DMV look up revealed that defendant’s New Jersey driver’s license was suspended, he “had an active ATS warrant, and was a N.J.W.P. for child support.” Id.

The defendant refused a consent to search the vehicle. Id.  The vehicle was towed and secured.  Trooper Rayhon advised defendant that he “was going to get a search warrant to search his vehicle.” (Da7).  At this time the defendant purportedly stated that “there is a pound of weed in the trunk in a duffle bag.” Id.

A search warrant was obtained (Da8) and a search of

the vehicle yielded “one large clear vacuum sealed plastic

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bag containing . . . suspected marijuana over 50/g.” Id.  The substance was tested and found to be marijuana in the amount of 454.7 grams, or just over one pound. (Da9).

The defendant has been evaluated and approved by a medical doctor in California to use marijuana, and has been given a California Medical Marijuana Card.  As stated by Edward E. Alexander, M.D. (California License A45272; Dea BA 1607881):

Edward Forchion has been evaluated under my medical care and reports to me that using marijuana helps relieve his symptoms.  I have evaluated the risk and benefits of cannabis use as a treatment pursuant to Health and Safety Code Section 11362.5, otherwise known as Medical Use of Marijuana.

 

I approve of my patients use of Marijuana for both medical and spiritual reasons.  As a Rastafarian he uses cannabis sativa as a sacrament, a food and a medicine I will continue to monitor his condition and provide advice on his progress. (Da12).

 

The defendant is a dual citizen of both New Jersey and California.  He is a legal medical/marijuana patient in the State of California.  He operates a medical marijuana (dispensary) Temple in Hollywood California called the “Liberty Bell Temple II” (5642 Hollywood Blvd., Hollywood CA 90028; www.libertybelltemple.com).

 

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POINT I

 

THE INDICTMENT MUST BE DISMISSED WITH

PREJUDICE SINCE THE CATEGORIZATION OF

 MARIJUANA AS A SCHEDULE I DRUG IS

UNCONSTITUTIONAL AND VIOLATES DUE

PROCESS AND EQUAL PROTECTION

 

Title 24 defines and categorizes “Narcotic Drugs and Other Dangerous Substances.”  The drug categorization is made by the State Commissioner of Health. (N.J.S. 24:21-2).  Controlled substances are broken down into five Schedules—Schedule I through Schedule V, with Schedule I substances being considered to have the highest potential for abuse with “no accepted medical use in treatment in the United States.” (emphasis supplied). N.J.S. 24:21-5. 

Pursuant to N.J.S. 24:21-5e(10), the commissioner has categorized marijuana as a Schedule I controlled substance—one found to have the highest potential for abuse and either no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.  Other Schedule I controlled substances include: 1) Heroin (24:21-5d(11)); 2) Morphine methylbromide (24:21-5d(15)); 3) Morphine methylsulfonate (24:21-5d(16)); 4) Morphine-N-Oxide (24:21-5d(17)); 5) 3,4-

methylenedioxy amphetamine (24:21-5e(1); 6) Lysergic acid

 

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diethylamide, commonly referred to as “LSD” (24:21-5e(9)); 7) Mescaline (24:21-5e(11)); and Peyote (24:21-5e(12)). Thus, the commissioner has placed marijuana in the same category as heroin, morphine, and L.S.D.

N.J.S. 24:21-3 (Authority to control) specifically grants the commissioner the authority to add “or delete or reschedule all substances enumerated in the schedules in sections 5 through 8 of this act” and applies the following criteria:

(1) Its actual or relative potential for abuse;

(2) Scientific evidence of its pharmacological effect, if known;

(3) State of current scientific knowledge regarding the substance;

(4) Is history and current pattern of abuse;

(5) The scope, duration, and significance of abuse;

(6) What, if any, risk there is to the public health;

(7) Its psychic or physiological dependence liability; and

(8) whether the substance is an immediate precursor of a substance already controlled under this article.

 

 

N.J.S. 24:21-3d had provided:

d. The State Department of Health shall update and republish the schedules in sections 5 though 8 on a

semiannual basis for 2 years from the effective date of this act and thereafter on an annual basis.

 

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The New Jersey State Legislature amended that provision in 2007 and it now reads:

d.  The director shall update and republish the schedules in sections 5 though 8.1 of P.L. 1970, c. 226, as amended and supplemented (C. 24:21-5 through 24:21-8.1) periodically.

 

Recently, the National Cancer Institute* has ruled that marijuana does in fact have medical benefits, making it the first federal agency to do so. (See The Raw Story Article “Federal Agency recognizes pot for medical use” by David Ferguson, dated March 27, 2011; Da13).

Defendant submits that the categorization of marijuana as a Schedule I drug is unconstitutional and violates substantive due process and equal protection.  Many scientific studies (and a growing number of states) have proven that marijuana does have an accepted medical use in treatment and should not be a Schedule I drug.  As explained in defendant’s pro se motion dated May 12, 1999:

Marijuana has been scientifically proven to have many legitimate, scientific medical uses.  Most

______________________

 

* The National Cancer Institute (NCI) is part of the National Institutes of Health (NIH), which is one of eleven agencies that compose the Department of Health and Human Services (HHS).  The NCI, established under the National Cancer Institute Act of 1937, is the Federal Government’s principal agency for cancer research and training.

 

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recently the National Academy of Science [through its] Institute of Medicine released a report March 18th, titled Marijuana and medicine.  This report was commissioned by Drug Czar General Barry McCafferty and the office of National Drug Control Policy. [ONDCP].  The report described marijuana (1) as a natural medicine used for at least 5,000 years by humans for varied medical ailments. (2) It denies marijuana is physically addictive. (3) It describes marijuana use as such – not abuse. In fact it notes that there has never, ever

been a recorded case death associated with marijuana use.  The report challenges the very classification of marijuana as a schedule I drug. (Da 35).

         

     Fifteen states (and District of Columbia) have legalized marijuana for medical use: Alaska, Arizona, California, Colorado, the District of Columbia, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, and Vermont. (See Summary Chart with laws, fee, possession limits, etc.; annexed at Da14-31).

     In 1972, the Shaffer Commission, named after former

Pennsylvania Governor William Shaffer, challenged the Scheduling of marijuana as a Schedule I drug, along with the appropriateness of prosecution individuals for using

it.  President Nixon, after not even reading the truthful report, suppressed it. (See NORML article dated March 19,

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2002; “Special Release 30 Years After Nixon’s Marijuana Commission Advocated Decriminalization, Report Findings Are Still Valid Nixon Never Read His Own Report”; Da32).

     The State of New Jersey has now recognized marijuana as a medicine but, since Governor Christie has for political reasons blocked implementation of the law, the State Health and Human Services Department has failed to reclassify marijuana (in spite of the fact that marijuana is both factually and scientifically not a schedule I drug).  After New Jersey passed its medical marijuana law on January 18, 2011, the defendant, a medical marijuana card carrying person, brought his medical marijuana with him to New Jersey from California, believing that he would have some legal protection.  As can be seen in the ProCon.org Medical Marijuana States and DC Summary Chart, as to whether New Jersey “Accepts other states’ registry ID cards?” this is “Unknown.” (Da25).   

In addition to the failure of the State of New Jersey to reclassify marijuana from a Schedule 1 drug, similarly, the federal government has failed to do so.  In enacting the Controlled Substances Act (CSA) in 1970, Congress specifically identified and defined a number of substances as "controlled substances" subject to strict regulation and

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it assigned substances to specific schedules.

Congress took the precaution of setting up a commission to determine on which schedule, if any, cannabis should be placed.  After an exhaustive study, this commission issued in March, 1972, its report entitled; "The First Report of the National Commission on Marihuana and Drug Abuse," subtitled; "Marihuana, a Signal of Misunderstanding."  This study stands as the first and foremost comprehensive scientific study ever done on the effect of cannabis on the health and safety of the United States population.  It recommended that simple possession of cannabis be totally decriminalized and concluded that cannabis did not pose a significant health and safety risk to the U.S. population.  Despite these findings, President Nixon used his prerogatives to place cannabis on CSA's Schedule 1 of controlled substances, which are described in the CSA rules as being "extremely dangerous."  Recent documents obtained through the Freedom of Information Act recount and document President Nixon's incomplete understanding and his prejudices surrounding cannabis.  These documents support already well-known attitudes of Nixon about cannabis and its use among some of his chosen enemies.  Nixon had cannabis placed on the Schedule 1 of controlled substances to punish

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these political enemies despite having in hand the Congressionally mandated study.

     Since that time cannabis users have been punished with savage severity unbecoming of a free nation, but totally in character with President Nixon's vindictive tendencies.  The millions of arrests for simple possession of cannabis in the intervening years and the percentage of cannabis arrests of all arrests for Schedule 1 substances suggest the political nature of placing cannabis on Schedule 1 of the CSA and calls into question the basic motivation of those charged with enforcing the prohibition of Schedule 1 substances.

The scheduling of cannabis stands in stark contrast to all other substances found on Schedule 1, on Schedule 2, or on any other substance found on any other schedule of the CSA in its comparative mild and benign qualities.  Cannabis is not only benign in its effects upon the user, it has

provable and recognized medical qualities recognized by all but the DEA who continue to promote their mantra that cannabis has no medical uses--since otherwise, it could not be a controlled substance on CSA's Schedule 1.

While the United States government has in the past impeded medical marijuana’s acceptance, in October of 2009 the Obama Administration announced a shift in the

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enforcement of federal drug laws, stating that the administration would effectively end the Bush Administration’s frequent raids on distributors of medical marijuana. See Washington Post article by Carrie Johnson dated October 20, 2009 “U.S. eases stance on medical marijuana”; at Da57-59 http://www.washingtonpost.com/wp-dyn/content/article/2009/10/19/AR20091010903638.html.

     Federal Administrative Law Judge Francis L. Young in In The Matter of: Marijuana Rescheduling Petition Docket No. 86-22 (1988) recommended that the DEA remove marijuana from Schedule One, stating: “Marijuana is one of the safest therapeutically active substances known to man.” http://www.druglibrary.org/olsen/medical/young/young.html

(Opinion at Da61-90).  The Bush Administration, like the Nixon Administration, refused.

Among the plethora of misinformation about cannabis is the DEA's dire predictions of what would happen if the prohibition on cannabis were to be lifted.  These predictions should have been forever put to rest by the experience of Alaska when these prohibitions were totally absent for a period of many months, during such time none of the DEA's dire predictions about the effects of lifting these laws took place.  What is more likely, according to

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many social scientists, is that the federally imposed prohibition on cannabis has had the same effect-especially on the youth-of creating a "forbidden fruit" syndrome, by which more people use the substance than would normally be the case.  This is borne out in the experience of The Netherlands, which issued its own study on cannabis at the same time of the 1972 Congressional study.  The Netherlands allowed for a relatively permissive approach and saw cannabis use among its young people drop markedly. 

The United States government's stubborn refusal to allow challenges to its severe restrictions on cannabis (and its penchant for ignoring studies and evidence contradicting its general prohibition of cannabis) call into question whether it does so simply to perpetuate a lucrative bureaucracy built on the destruction of an otherwise innocent class of citizens who, because of their felony convictions, are robbed even of the legal means to remedy their oppression.  This injustice is multiplied infinitely by the denial of the Rastafarian and other churches' cannabis sacrament, a sacrament that has been used religiously by man throughout recorded history.

For these reasons, the indictment against Edward R. Forchion must be dismissed with prejudice.

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POINT II

N.J.S.A. 2C:35-5A(1) AND B.10(A)

ARE UNCONSTITUTIONAL AS THEY VIOLATE

THE DEFENDANT’S RIGHTS UNDER THE RELIGIOUS

FREEDOM RESTORATION ACT AND THE FIRST

AMENDMENT ESTABLISHMENT CLAUSE, AND

ARTICLE 1, PARAGRAPH 4 OF THE NEW JERSEY

CONSTITUTION; SINCE PEYOTE IS A RECOGNIZED

RELIGIOUS EXEMPTION ALONG WITH ANOTHER

SCHEDULE I SUBSTANCE (AYAHUASCA TEA); THE

 DEFENDANT, A PRACTISING RASTAFARIAN,

MUST BE AFFORDED AN EXEMPTION FOR HIS

RELIGIOUS SACRAMENT GANJA (MARIJUANA)

 

 

The First Amendment provides that “Congress shall make

no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Article I, paragraph 3 of the New Jersey Constitution provides: “No person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience ...” Article I, Paragraph 4 of the New Jersey Constitution provides that “There shall be no establishment of one religious sect in preference to another ...”

The United States Constitution is the supreme law of the land (Article VII), and any statutory law must be in total agreement with the Constitution to be valid.  However, "[n]o one is bound to obey an unconstitutional law

 

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and no courts are bound to enforce it." 16th American Jurisprudence 2nd edition, Sec 177, late 2nd, Sec 256. "All laws which are repugnant to the Constitution are null and void." Marbury v. Madison, 5 U.S. (2 Cranch) 137, 174, 176, (1803).

 “Where rights secured by the Federal Constitution are involved, there can be no rule-making or legislation which would abrogate them.” See, Miranda v. Arizona, 384 U.S. 436, 491, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ("An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed"); Norton vs. Shelby County, 118 U.S. 425, 442 (“Challengers asserting that a

statute is unconstitutional based on a claim of vagueness ordinarily is analyzed in light of the facts of each particular case; however, when First Amendment freedoms are involved, statute may be challenged on the grounds that it is facially invalid”); Luckei v. State of New Mexico, 901 P.2d 205, 120 N.M 274 (N.M. 1995) (“Due Process requires all laws which seek to regulate First Amendment activities must be sufficiently definite and certain so as not to be

 

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impermissibly vague”); Ellwest Stero Theater v. Boner, 718 F.Supp. 1553 (M.D. Tenn. 1989).

The Establishment and Equal Protection Clauses of the Constitution require state neutrality and prevent a state from passing laws which prefer one religion over another. Olsen v. Drug Enforcement Admin., 878 F.2d 1458, 1463 n. 5 (D.C.Cir. 1989); Walz v. Tax Comm’n, 397 U.S. 664, 696, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (establishment requirement of neutrality “in its application requires an equal protection mode of analysis”).

Our Christian/Jewish legislators have chosen their Judeo/Christian faith as the genesis of our drug laws by allowing the use of wine as a sacrament but prohibiting the use of “marijuana” as a sacrament.  The defendant is a practicing Rastafarian.  Rastafarians use marijuana as both a sacrament in religion and as a medicine.

The defendant is a practicing Rastafarian and marijuana—-known as ganja in the religion--operates as a sacrament and is an integral part of the Rastafarian religious ceremony.  Prior to discussing the religion of Rastafarianism a brief overview of the history of marijuana and the marijuana laws is in order.

 

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THE HISTORY OF MARIJUANA AND THE MARIJUANA LAWS

     Marijuana has been used by man (mostly men of color,which defendant is), for over 5000 years as a 100% natural medicine. (Da33).  Cannabis saliva L. was one of the first plants to be used by man for fiber, food, medicine, and in social and religious rituals.  There were approximately 20 traditional medicinal uses of cannabis in Western medicine from the mid-19th to early 20th century.  In 1941, the United States Government ordered marijuana passed out of the National Formulary and the United States Pharmacopeia. (Da 34).

Marijuana was first regulated in the United States at the federal level by the Marijuana Taxation Act of 1937 (MTA of 1937).  The MTA of 1937 “required anyone producing, distributing, or using marijuana for medical purposes to register and pay a tax.” (Da33).

Although the Act did not make medical use of marijuana illegal, from the years 1937 through 1939 the Federal Bureau of Narcotics, under Harry Anslinger, prosecuted 3,000 doctors for “illegally” prescribing cannabis-derived medications.  In 1939, the American Medical Association reached an agreement with Anslinger and stopped prescribing marijuana. (Da34).  In 1942 marijuana was removed from the

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United States Pharmacopeia. (Da34).

The MTA of 1937 remains one of the toughest Jim Crow still being enforced.  It is no mistake that blacks are disproportionately incarcerated.  Defendant submits that, while the government knows that marijuana is safe, the marijuana laws are a major vehicle for the legalized enslavement of citizens into the all-white controlled private and public prison industry.  These marijuana laws,  which enslave African-American (minority) citizens, also enrich the white investors in the prison industry. (Da34).

Today’s inner cities have been transformed into war zones by these racist inspired policies.  Whenever a prohibition is created, a black market will naturally appear in a capitalist culture. (Da35).

When a similar thing happened in the white communities with the Prohibition era (illegalizing alcohol), the black market element (organized crime) that Prohibition created eventually led to the end of Prohibition.  During the roaring 20’s, from Los Angeles to New York, whites started shooting each other, with drive by shootings became common.  The only difference from then and now is the color the

combatants.  In 1933 the all-white Congress ended the “War

on Alcohol” with the 21st Amendment. (Da36).

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THE RELIGION OF RASTAFARIANISM

As stated above the defendant is a practicing Rastafarian.  The Supreme Court has defined "religion" broadly. See United States v. Seeger, 380 U.S. 163, 176 (1965) (religion, for the purposes of the Selective Service statute, encompasses any "sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the [religious] exemption").  Rastafarianism unquestionably is within this definition.

In considering the definition of "religion," the Tenth Circuit canvassed a large number of lower court decisions to arrive at a list of attributes that typically indicate religiosity, and Rastafarianism possesses all these attributes. See United States v. Myers, 95 F.3d 1475, 1482-84 (10th Cir. 1996).  First, religions often address "fundamental questions about life, purpose, and death," id. at 1483, and Rastafarianism does so.  Second, religious beliefs often are "metaphysical" in that they "address a reality that transcends the physical and immediately apparent world." Id.   Rastafarian beliefs are metaphysical in just this way.  Third, religions "prescribe a particular

 

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manner of acting, or a way of life that is 'moral' or 'ethical.'"  Rastafarians are expected to adhere to this type of conduct.  Finally, Rastafarian doctrine is also "comprehensive" in the manner defined by the Tenth Circuit. See United States v. Myers, 95 F.3d at 1483.

Moreover, Rastafarianism possesses all but one of the verifiable "[a]ccoutrements of [r]eligion" that the Tenth Circuit said "may indicate that a certain set of beliefs is 'religious.'" Meyers, 95 F. 3d at 1483.  It has a ["f]ounder, [p]rophet, or [t]eacher," "[i]mportant [w]ritings," "[g]athering [p]laces," "[k]eepers of knowledge," "[c]eremonies and rituals," "[s]tructure or [o]rganization," "[h]olidays," "[d]iet or [f]asting," and special "[a]ppearance and [c]lothing.”  The sole "accoutrement" listed by the Tenth Circuit that Rastafarianism does not display is an "attempt to propagate their views and persuade others of their correctness." Meyers, 95 F.3d at 1384.

Rastafarianism is a recognized religion by both the United Nations and United States. (Da44).  Rastafarianism first took root in Jamaica in the nineteenth century, and is based on a combination of Old Testament ideology and

 

20

East African philosophy.  During the 1920’s, with the rise of Jamaican Nationalism and the African-American leader Marcus Garvey, the religion gained adherents in the United States. See Mircea Eliade, Encyclopedia of Religion, 96-97 (1989) (1989); See United States v. Bauer, 84 F.3d 1549, 1556 (9th Cir. 1996); Steele v. Blackmun, 236 F.3d 130, 132 (3rd Cir. 2001).  Most of the Rastafarian religion’s followers in this country are African-American. (Da44).

Rastafarianism proclaims the divinity of Haile Selassie, the former Emperor of Ethiopia, and anticipates the eventual redemption of its adherents from the “Babylon” of white oppression. Steele v. Blackmun, 236 F.3d 130, 132 (3rd Cir. 2001).  It is a religious group sufficiently stable and distinctive to be identified as one of the existing religions in this country. See J. Gordon Melton, Encyclopedia of American Religions, 870-71 (1991).  Standard descriptions of the religion emphasize the use of marijuana in cultic ceremonies designed to bring the believer closer to the divinity and to enhance unity among believers.  Marijuana--known as ganja in the religion--operates as a sacrament with the power to raise the partakers above the mundane and to enhance their spiritual

 

21

unity. Bauer, 84 F.3d at 1556.  Marijuana is utilized for “spiritual healing.” 

SUBPOINT I

 

THE DEFENDANT’S SACRAMENTAL USE OF

CANNABIS IS PROTECTED UNDER THE

RELIGIOUS FREEDOM RESTORATION

ACT (RFRA)

    

By depriving defendant (and all Rastafarians) of his ability to partake in and possess his sacramental cannabis, the State of New Jersey has burdened defendant’s exercise of his religion in a manner forbidden by the RFRA, Pub. L. No. 103-141, 107 Stat. 1488 (1993), codified at 42 U.S.C. §§ 2000bb-2000bb-4 (1994).

The statutory prohibition established by § 2000bb-1(a) & (b) is judicially enforceable. See 42 U.S.C. § 2000bb-(c).  Moreover the Act applies to any "branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States," as well as to any" State, or . . . subdivision of a State." City of Boerne v. Flores, 521 U.S. 507, 516 (1997).

The United States Supreme Court case of Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 82, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), resulted in Congress enacting the Religious Freedom Restoration Act of

22

1993 (RFRA), which prohibited the government from substantially burdening a person’s exercise of religion.  In City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court struck down that legislation, and Smith remains controlling law.

In People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002), the Ninth Circuit ruled that the RFRA forbids prosecuting Rastafarians for using marijuana within the federal realm, such as a United States territory or a national park, thus upholding a portion of the RFRA.  The Court in Guerrero, however, ruled that the defendant could be prosecuted for importing marijuana, since Rastafarianism does not require importation of a controlled substance, which increases its availability. Id. at 1223.

The distinction in Guerrero does not make sense since it is the equivalent to saying that, while wine is a necessary sacrament for some Christians, the persons administering the sacrament would have to grow their own grapes.  If a Rastafarian is permitted to smoke ganja on federal grounds as a constitutionally protected behavior, it is illogical to prosecute the person who provides the ganja.

 

23

The RFRA protects the religious use of marijuana by practicing Rastafarians, just as the 1919 Volstead Act (Prohibition Act) protected the religious use of alcohol in the Catholic Church.  When New Jersey revised its criminal code with the 1997 omnibus crime bill, it failed to provide for a religious exemption for marijuana.  As Rastafarianism regards marijuana as a sacrament necessary to the practice of the religion, the statutes prohibiting marijuana are unconstitutional.  Since to utilize the sacrament of ganja/marijuana it is necessary to import it, then any law which prohibits the importation and distribution (and possession with intent to distribute) for this purpose is also unconstitutional.

Neither the 1970 Controlled Substance Act (21 U.S.C.321(p)(1)) nor N.J.S.A. 2C:35-5a(1) and b.10(a)   provide for First Amendment religious exemptions to drug laws.  Congress attempted to rectify this with the 1993 Religious Restoration Act (“RFRA”) (42 U.S.C. §2000bb(a)), but instead created an unconstitutionally “vague” situation. 

Defendants such as Forchion were led to believe “marijuana” was legal for religious purposes.  The RFRA protects the religious use of marijuana by practicing Rastafarians, just

 

24

as the 1919 Volstead Act (Prohibition) protected the religious use of alcohol in the Catholic Church.

In Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court upheld, against a First Amendment challenge, an Oregon law criminalizing peyote use, which was used in Native American religious rituals.  Smith, a member of the Native American

Church, ingested peyote for sacramental purposes at a church ceremony.  This led Smith’s employer to fire him. Id. at 874.  Smith sued for unemployment benefits, arguing that the denial of unemployment benefits

burdened his First Amendment right, and the Supreme Court allowed Oregon to enforce the anti-drug law against Smith. Id. at 884-85.

In response to Employment Division, Congress enacted the RFRA.  However, the Court in City of Boerne v. P.F. Flores, 521 U.S. 507, 138 L.Ed.2d 624, 117 S.Ct. 2157 (1997) declared the RFRA unconstitutional as applied to the States.  The City of Boerne case arose when the Catholic Archbishop of San Antonio applied for a building permit to enlarge his 1923 mission-style St. Peter’s Church in Boerne, Texas.  Local zoning authorities denied the permit,

 

25

relying on an ordinance governing additions and new construction in a historic district which included the church as a contributing property.  The Archbishop brought a lawsuit challenging the permit denial under the RFRA, arguing that his congregation had outgrown the existing structure.  The Archbishop claimed that his ability to act on his beliefs was substantially burdened by the denial of the proposed addition.

The Supreme Court in Boerne, in an opinion by Justice Anthony Kennedy, struck down RFRA as an unconstitutional use of Congress’s enforcement powers. 

However, the scope of Boerne was limited in Gonzales v. O Centro Espirita Beneficente, Uniao do Vegetal, 546 U.S. 418 (2006), involving the Federal Government’s seizure of a sacramental tea (ayahuasca), containing a Schedule I substance, from a New Mexican branch of the Brazilian church Uniao do Vegetal (UDV).  The church sued and claimed that the seizure was illegal, and sought to ensure future importation of tea for religious use.  The United States District Court for New Mexico agreed and issued a preliminary injunction under the RFRA.  The Government appealed to the Ten Circuit Court of Appeals, which affirmed.

26

The Supreme Court heard the case and found that the Government had failed to meet its burden under the RFRA that barring the substance served a compelling government interest.  The Court also disagreed with the government’s central argument that the uniform application of the Controlled Substances Act (CDS) does not allow for exceptions for the substance in this case, as Native Americans are given exceptions to use peyote, another Schedule I substance.  It should be noted that the ruling is not binding on the states, as the Act was amended in 2003 to only include the federal government and its entities, such as Puerto Rico and the District of Columbia.

     So both peyote (a Schedule I substance) and sacramental tea (ayahuasca) (another Schedule I substance) have been provided religious exemptions by the Supreme Court.   Accordingly, ganja (marijuana) must be afforded the same exemption to Rastafarians.

In People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002), the Ninth Circuit ruled that the RFRA forbids prosecuting Rastafarians for using marijuana within the federal realm, such as a United States territory or a national park, thus upholding a portion of the RFRA.

 

27

In Guerrero the defendant, a Rastafarian arrested at the Guam airport with marijuana and seeds, was charged with importing the drugs.  The Court ruled that a Rastafarian whose Jamaica-based religion regards marijuana as a sacrament that brings believers closer to divinity could not be prosecuted for merely possessing marijuana in the “federal realms.”  The ruling applies to California, eight other Western states, and the Pacific territories of Guam and the Northern Mariana Islands.  If it became a nationwide standard, it would cover the federal enclaves of Washington, D.C., Puerto Rico, and any other federal property.  The Court, however, ruled that the defendant could be prosecuted for importing marijuana, since “Rastafarianism does not require importation of a controlled substance, which increases (its) availability ...” Id. at 1223.

This distinction in Guerrero does not make sense since it is the equivalent to saying that, while wine is a necessary sacrament for some Christians and Jews, the persons administering the sacrament would have to grow\their own grapes.  If a Rastafarian is permitted to smoke ganja on federal grounds as constitutionally protected 1st

 

28

Amendment behavior, it is illogical to prosecute the person who provides the ganja. See also Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (Supreme Court held unconstitutional an ordinance passed in Hialeah, Florida, that forbade the “unnecessary[y] killing of “an animal in a public or private ritual or ceremony for the primary purpose of food consumption.”)   

The RFRA protects the religious use of marijuana by practicing Rastafarians, just as the 1919 Volstead Act (Prohibition Act) protected the religious use of alcohol in the Catholic Church.  When New Jersey revised its criminal code with the 1997 omnibus crime bill N.J.S.A. 2C:35-5a(1) and b.10(a), it failed to provide for a religious exemption for marijuana.  As a Rastafarianism regards marijuana as a sacrament necessary to the practice of the religion, the statutes are unconstitutional.  Since to utilize the

sacrament of ganja/marijuana it is necessary to import it, then any law which prohibits the importation and distribution (and possession with intent to distribute) for this purpose is also unconstitutional.

     On January 18, 2010, the State of New Jersey officially recognized marijuana’s medicinal value but

 

29

failed to reclassify marijuana from a Schedule I drug.  The new law clearly made a secular medical “exemption” for the criminal drug statutes but failed to make a religious exemption.

     For the foregoing reasons and authorities cited, the indictment against Edward Forchion must be dismissed with prejudice.

SUBPOINT II

THE STATE OF NEW JERSEY’S INTERFERENCE

WITH THE DEFENDANT’S SACRAMENTAL USE OF

MARIJUANA SUBSTANTIALLY BURDENS HIS

EXERCISE OF RELIGIOUS FREEDOM

In addition to being a violation under the RFRA, the State’s interference with the defendant’s sacramental use of marijuana substantially burdens the defendant’s exercise of religion.  Compelling a party to forego a religious practice imposes a substantial burden on that party. See, e.g., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 140-41 (1987); Horen v. Commonwealth, 479 S.E.2d 533, 558-59 (Va. 1997). "There can be no more direct burden on free exercise than absolute criminal prohibition." Michael W. McConnel, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1125 n.80 (1990).

 

30

In the Rastafarian religion, no substitute exists for cannabis; its ingestion or topical application is necessary for a Rastafarian ceremony to occur.  Because cannabis is regarded as sacred, Rastafarian doctrine does not permit the substitution of any other plants or materials as sacraments during Rastafarian ceremonies, and does not permit the substitution of any other practice for the ingestion or topical application of cannabis.

The sincerity with which the defendant holds these beliefs cannot be questioned.  Indeed, the government may not make theological judgments about religious truth. See Seeger, supra, 380 U.S. at 184 (“In such an intensely personal area ... the claim of the registrant that his belief is an essential part of a religious faith must be given great weight"); see also id. at 185 (noting that "the 'truth' of a belief is not open to question"); Africa v. Pennsylvania, 662 F.2d 1025, 1030 (3rd Cir. 1981) ("It is inappropriate for a reviewing court to attempt to assess the truth or falsity of an announced article of faith. Judges are not oracles of theological verity.")

Therefore, governmental decision-makers must view

 

31

cannabis as central and indispensable to the Rastafarian religious practice.  If wine were added to schedule 1 with no accommodation for religious use, it would be absolutely clear that the free exercise of Catholicism and Judaism was being substantially burdened.  The same is true of cannabis and the Rastafarian religion.

Therefore, prohibition of the Rastafarian religion's use of cannabis "substantially burden[s]" the exercise of the Rastafarian religion, within the meaning of RFRA, 42

U.S.C. § 2000bb-1(a). See e.g. United States v. Boyll, 774 F. Supp. 1333, 1341 (D.N.M. 1991) (“believers who worship at the Native American Church cannot freely exercise their religious beliefs absent the use of peyote.” ... “There is no dispute that [the] criminal prohibition of peyote places a severe burden on the ability of [Defendant] to freely exercise [his] religion.") (citations omitted); see also United States v. Warner, 595 F.Supp. 595, 598 (D.N.D. 1984) ("[T]he government concedes that the use of peyote is

central to, and the cornerstone of, the religious practices

of the NAC. Therefore, prosecution for the use of peyote in the bona fide religious practices of the NAC would create a

 

32

burden on the free exercise of the religion of NAC members.")

     The government does not have a compelling interest in criminalizing the use of cannabis nor has it adopted the latest least restrictive means to secure its interest.  The 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. § 2000-1 (b). "[T]he term 'demonstrates' means going forward with evidence and persuasion...." 42 U.S.C 2000bb-2(3).

Thus, on all issues relating to whether complete suppression of Rastafarians’ use of cannabis serves a compelling governmental interest by the least restrictive means, the burden of going forward and the burden of persuasion rest with the government.  Moreover, the compelling-interest test under RFRA is "the compelling interest test set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)...." 42 U.S.C. § 2000b(b)(I).

33

In Yoder, the Court made it clear that the test, earlier set forth in Sherbert, is not whether the government has a compelling interest in a general objective (e.g., an educated citizenry, prevention of drug abuse), but whether it has a compelling interest in substantially burdening the specific religious practice of them particular individual or group at issue.  The Court rejected "the State's broader contention that its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way." Id. at 221.  It stated that, "despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish exemption." Id.  The

Court held that "it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish." Id. at 236.  The Court found that "Wisconsin's interest in compelling the school

 

34

attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance for children generally.” Id. at 228-29.

Similarly here, it is necessary to focus on the particular facts relating to Rastafarianism and its use of cannabis.  The government has only one arguably compelling interest in controlling the use of cannabis in Rastafarian religious ceremonies, that of protecting the members of the Rastafarian religion from harm.  However, independent and scientific literature suggests the absence of harm resulting from the consumption of cannabis.  No evidence exists that the use of cannabis in religious ceremonies is addictive or is otherwise likely to harm the individuals participating in the ceremonies.  The United States government's own "Compassionate Use Program," which has for decades supplied cannabis to terminally ill patients as a medicine to mitigate their suffering, has never received a complaint from any of its participants involving any medical or other substantial problem involving their use of the supplied cannabis.  The government's own records attest to this fact.

 

35

For these reasons, it is clear that defendant’s use and possession of cannabis as criminally impermissible acts under the laws of New Jersey substantially burden the defendant Edward Forchion's (and other Rastafarians) exercise of their religion in a manner that is not justified by a compelling governmental interest carried out in the least restrictive manner.  Accordingly, since defendant's rights under RFRA will be violated with a criminal conviction in this case the indictment must be dismissed with prejudice.

 

SUBPOINT III

 

THE STATE OF NEW JERSEY’S ACTIONS

HAVE VIOLATED DEFENDANT’S FIRST

AMENDMENT RIGHTS

In addition to the above arguments, the State of New Jersey’s actions, in addition to violating the RFRA, also violate the First Amendment.  The Free Exercise Clause of the First Amendment reflects the fundamental importance of religious liberty in American democracy: "Congress shall make no law ... prohibiting the free exercise" of religion. U.S. Const. Amend. I. 

 

36

In Employment Division Dept. of Human Resources v. Smith, 494 U.S. 872 (1990), the Supreme Court, distinguishing prior case law, held that if a law is both "neutral" and "generally applicable," it may be applied to religiously motivated conduct without compelling justification. Id. at 872.  However, a law that prescribes or permits individual exceptions is not "generally applicable"; a law that gives preferred treatment to secular interests as compared with religious interests or that gives preferred treatment to one religion as compared with another is not "neutral."  Indeed, the Tenth Circuit has already expressly held that the DEA's NAC and UDV exemptions in 21 C.F.R. § 1307.31 "unlike the statute in Smith, is neither neutral nor generally applicable." United States v. Boyll, 774 F.Supp. at 1341; see also Church of Lukumi Babalu Aye, Inc. v. Hiahleah, 508 U.S. 520, 537-38 (1993); Smith, 494 U.S. at 884; Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 364-65

(3rd Cir.), cert. denied, 120 S.Ct. 56 (1999); Rader v. Johnston, 924 F.Supp. 1540, 1551-55 (D. Neb. 1996).

When a law that is not generally applicable or not neutral

 

37

interferes with the practice of religion, such interference must be justified by a compelling governmental interest and must be narrowly tailored (i.e., must survive "heightened scrutiny"). See Church of Lukumi Babalu Aye, 508 U.S. at 531-32.  Under Smith, "where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason." 494 U.S. at 884.

In 1993, the Supreme Court in Church of the Lukumi Babalu Aye applied the Smith framework to local animal-slaughter laws that were neither generally applicable nor neutral.  The City of Hialeah, Florida, had enacted several ordinances that banned the ritual sacrifice of animals; these laws directly burdened the religious practice of local members of the Santeria religion, who challenged the laws in court. See id. at 525-28.  The city sought refuge in Smith, but its position was undermined by the fact that the ordinances were not generally applicable, but rather contained express exceptions for animal slaughter for food and for hunting. See id. at 536-37.  The Supreme Court applied Smith to hold that heightened scrutiny would apply

 

38

to the local laws because they were neither generally applicable nor neutral. Id. at 546.  A "law burdening religious practice that is not neutral nor of general application must undergo the most rigorous of scrutiny." Id.

The import of Smith and Lukumi Bagbalu Aye is that, where a statutory scheme does not make exceptions from the baseline regulatory of prohibitory regime, it cannot grant exceptions for secular purposes but deny exceptions for religious purposes without compelling reasons for the denial.  Although the Smith rule states that religion in general or a particular religion need not be specially favored under an otherwise generally applicable law, the converse is also true: religion must not be disfavored when the government grants exceptions to statutory prohibition.

Two recent cases in the lower federal courts illustrate the application of this principle.  The first involved a challenge under the Free Exercise Clause to the Newark, New Jersey's Police Department's prohibition against officers wearing beards. See Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 170 F.3d. 359, 364-65 (3rd Cir.),

 

39

cert. denied, 120 S.Ct. 56 (1999) Cir. 1999), cert. denied, 120 S.Ct. 56 (1999).  The plaintiff officers were Sunni Muslims whose religion imposes on adult males to wear beards.  Their request for exemption from the policy was denied; the department announced a 'zero tolerance policy' for departures from the ban, except for those officers who received a "medical clearance" to wear a beard. See id. at 361.  The Third Circuit held that, because exceptions were made for those who needed to wear a beard for a secular (medical) reason, the compelling-interest test would govern the prohibition's application to claims for religious exemption. See id. at 366 ("[W]hen the government makes a value judgment in favor of secular motivations, the government's actions must survive heightened scrutiny."). Because the department offered no compelling reason for the policy, the court upheld the Free Exercise claim. See id. at 366-67.

Another court applied Smith similarly to uphold a college student's right to a religious exemption from the University of Nebraska's mandatory housing policy. See Rader v. Johnston, 924 F.Supp. 1540 (D. Neb. 1996).  

 

40

The university imposed a rule that all freshmen live in on-campus dormitories.  The university maintained three categorical exceptions for married students, older students, and students commuting from their parent's home; it also allowed for individualized exceptions for secular reasons such as familial responsibility, medical need, or emotional difficulties. See id. at 1546-47.  The university, however, refused to provide an exemption from the dormitory to Douglas Rader who sought such exemption on the basis of his fundamentalist Christian beliefs and lifestyle, which he claimed would be burdened by the permissive culture of college housing.  The district court found that the university's policy violated Rader's First Amendment rights, relying on Smith and Lukumi Babalu Aye and holding that, "[i]f a law or policy provides exemptions for certain reasons, such as medical treatment, then it should provide similar exemptions for religious purposes, unless the state can show an overriding compelling interest." Id. at 1555 (quotation omitted).  Finding no compelling interest on the university's part, the court ruled in Rader's favor. See id. at 1558.

 

41

It should be pointed out that the defendant Forchion previously raised both the First Amendment and the RFRA claim following his arrest due to protests at the Liberty Bill (Independence National Historic Park -- federal property) in Philadelphia, Pennsylvania.  The defendant was found guilty by a federal magistrate but appealed.  In an opinion dated July 22, 2005, the Honorable Stewart Dalzell affirmed the conviction but vacated the sentence. See http://www.ethipianzioncopticchurch.org/Cases/forchion.aspx (United States v. Edward Forchion Opinion annexed at Da91-97).  The case was also remanded to the Honorable Arnold C. Rapoport for further proceedings but Judge Rapoport dismissed the case without ruling on the original issues.

For the foregoing reasons and authorities cited, the indictment must be dismissed with prejudice.

 

 

 

 

 

 

 

42

POINT III

 

N.J.S.A. 2C:35-5A(1) AND B.10(A)

ARE UNCONSTITUTIONAL AS THEY VIOLATE

THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION SINCE PEYOTE (A

SCHEDULE I SUBSTANCE) IS A RECOGNIZED

RELIGIOUS EXEMPTION ALONG WITH ANOTHER

SCHEDULE I SUBSTANCE (AYAHUASCA TEA); THE

 DEFENDANT, A PRACTISING RASTAFARIAN,

MUST BE AFFORDED THE SAME PROTECTION

 

 

Defendant incorporates by reference the arguments and authorities in Point II and submits that since both peyote (a Schedule I substance) and sacramental tea (ayahuasca) (another Schedule I substance) have been provided religious exemptions by the Supreme Court, the failure to do so for Rastafarians and their religious sacrament ganja (marijuana) is violative of the equal protection clause of the Fourteenth Amendment (and Fifth Amendment).

The Fifth Amendment requires the federal government accord all persons the equal protection of law; that it treat alike all persons similarly situated. "In order to assert a viable equal protection claim, plaintiffs must first make a threshold showing that they were treated differently from others who were similarly situated to them." Campbell v. Buckley, 203 F.3d 738, 747 (10th Cir.

 

43

2000). (footnotes, quotations, and ellipses omitted), cert. denied, 121 S.Ct. 68 (2000).  The principle of equal protection of law forbids selective enforcement bases upon an "unjustifiable standard such as race, religion, or other arbitrary classification." United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979).

In the instant case, the State is selectively enforcing the State marijuana laws based on defendant’s religious classification.  The Rastafarian religion is similarly situated to both the Native American Church (“NAC”) and the O Centro Espirita Beneficiente Uniao Do Vegetal-USA (“UDV-USA”) in all significant respects.  All three religions use Schedule 1 substances as religious sacraments and in all three, ingestion of that substance is necessary to the proper conduct of religious ceremonies.  Neither the NAC nor the UDV-USA hold special qualities or attributes that would justify defendant's more favorable treatment of them.  Indeed, both the NAC and the UDV-USA have some attributes that would make each of them a less favorable candidate for permission to use their Schedule 1 substances in religious ceremonies.  Unlike cannabis, both peyote and DMT are strong mind-altering substances that are

 

44

temporarily debilitating and may require an attendant be present to ensure the health and safety of the sacrament's recipient.  Cannabis, by contrast, is much milder and is not in any way temporarily debilitating as both peyote and DMT can often be. See "First Report of the National Commission on Marihuana and Drug Abuse," pp. 58-61. Newcomers to the Rastafarian religion are virtually all already familiar to cannabis and therefore are not likely to confuse the religion with the effects of the sacrament. Already widespread use of cannabis in all walks of American life means neophytes to the Rastafarian religion are not likely to be drawn to the Rastafarian religion as a haven for otherwise illicit drug use as is more likely with neophytes of the other two above religions.

Defendant seeks to use his sacrament on-site with no importation, distribution, or transport envisioned

for his sacrament, unlike at least one of the other religions allowed to use a Schedule 1 substance as their sacrament.

Therefore, although the Rastafarian religion and its members are similarly situated to the NAC and its members and to the UDV-USA and its members, the State of New Jersey

 

45

has failed and refused to treat them similarly.  NAC and UDV-USA members may freely exercise their religion and members of the Rastafarian faith may not.  The Fifth Amendment does not permit such conduct. See United States v. Armstrong, 517 U.S. 456, 464 (1996) ("One of these constraints imposed by the equal protection component of the Due Process Clause of the Fifth Amendment ... is that the decision whether to prosecute may not be based on 'an unjustifiable standard such as race, religion, or other arbitrary classification ...')” (citations omitted).

New Jersey refuses to recognize these laws, in violation of the United States Constitution’s guarantee that each state will give "full faith and credit" to the laws of other states.  All persons are supposed to be treated equally, yet in New Jersey persons now identified as falling under the Medical Marijuana Compassionate Use Act are immune from prosecution for possession of marijuana, while other persons such as the defendant Forchion are charged with a criminal violation.  This is a clear equal protection violation (particularly since the defendant Forchion had at the time of his arrest a valid California marijuana card (annexed at Da12).

 

46

Since ganja (marijuana) must be afforded the same exemption to Rastafarians, the failure to do so violates defendant’s equal protection rights.

The indictment must be dismissed with prejudice.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

47

 

 

 

POINT IV

 

THE MARIJUANA STATUTES ARE UNCONSTITUTIONAL

DUE TO VAUGENESS, INDEFINITENESS AND OVER-

BREADTH; THEY ALSO VIOLATE THE UNITED STATES

 CONSTITUTION’S PROHIBITION AGAINST BILL OF

ATTAINDERS; AT THE VERY LEAST, DEFENDANT

SHOULD BE ALLOWED TO PRESENT EXPERT

TESTIMONY CONCERNING THIS ISSUE

 

In State v. Profaci, 56 N.J. 346 (1970), the Court cited the principles concerning whether a statute is

unconstitutional due to vagueness, indefiniteness or overbreadth:

The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication.  The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to appraise judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.

 

The defendant Edward Forchion is a dual citizen of both New Jersey and California.  He is a legal medical/marijuana patient in the State of California.  He operates a medical marijuana (dispensary) Temple in Hollywood California called the “Liberty Bell Temple II” (5642 Hollywood Blvd., Hollywood California 90082; www.libertybelltemple.com).

 

48

 

The Due Process clause of the Fifth and Fourteenth Amendments require that criminal laws be drafted in language that is clear enough for the average person to comprehend.  If a person of ordinary intelligence cannot determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed under a particular law, then the law will be deemed unconstitutionally vague.

The United States Supreme Court has said that no one may be required at peril of life, liberty, or property to speculate as to the meaning of a penal law. Everyone is entitled to know what the government commands or forbids.

The void for vagueness doctrine advances four underlying policies.  First, the doctrine encourages the government to clearly distinguish conduct that is lawful from that which is unlawful.  Under the Due Process Clause, individuals must be given adequate notice of their legal obligations so they can govern their behavior accordingly. When individuals are left uncertain by the wording of an imprecise statute, the law becomes a standardless trap for the unwary.

 

49

For example, vagrancy is a crime that is frequently regulated by lawmakers despite difficulties that have been encountered in defining it.  Vagrancy laws are often drafted in such a way as to encompass ordinarily innocent activity. In one case the Supreme Court struck down an ordinance that prohibited "loafing," "strolling," or "wandering around from place to place" because such activity comprises an innocuous part of nearly everyone's life. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed. 2d 110 (1972).  The Papachristou Court concluded that the ordinance did not provide society with adequate warning as to what type of conduct might be subject to prosecution.

Second, the void for vagueness doctrine curbs the arbitrary discriminatory enforcement of criminal statutes. Penal laws must be understood not only by those persons who are required to obey them but by those persons who are charged with the duty of enforcing them. Statutes that do

not carefully outline detailed procedures by which police officers may perform an investigation, conduct a search, or

 

50

make an arrest confer wide discretion upon each officer to act as he or she sees fit.  Precisely worded statutes are intended to confine an officer's activities to the letter of the law. 

Third, the void for vagueness doctrine discourages judges from attempting to apply sloppily worded laws.  Like the rest of society, judges often labor without success when interpreting poorly worded legislation. In particular cases, courts may attempt to narrowly construe a vague statute so that it applies only to a finite set of circumstances.  For example, some courts will permit prosecution under a vague law if the government can demonstrate that the defendant acted with a specific intent to commit an offense, which means that the defendant must have acted willfully, knowingly, or deliberately.  By reading a specific intent requirement into a vaguely worded law, courts attempt to insulate innocent behavior from criminal sanction.

On January 18, 2010, Governor Corzine signed into New

Jersey law “The New Jersey Medical Marijuana Compassionate Use Act.”  This Act clearly recognized Marijuana’s legal

 

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medical use, thereby rendering the State of New Jersey’s Criminal statute seriously flawed and virtually “worthless” since it is entirely based on the state criminal position that marijuana is a CDS, a schedule 1 Controlled Substance.

Fourteen States, including the State of New Jersey have now recognized marijuana has medical value.  The New Jersey State legislators obviously believe and understand that “marijuana” has medical value, and are currently working on a plan to safely distribute marijuana to sick individuals in the state of New Jersey.  The State criminal statute is constitutionally and fatally flawed.

Schedule I controlled substances:

 Are a category of drugs not considered legitimate for medical use. Among the substances so classified by the Drug Enforcement Agency are mescaline, lysergic acid diethylamide, heroin, and marijuana. Special licensing procedures must be followed to use these or other Schedule I substances.

 

All substances listed as a Schedule 1 drug must have the following prerequisites:

(A) The drug or other substance have a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

 

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(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

 

The Director of Health and Human services has failed to accurately reclassify marijuana in light of the state's explicit acknowledgment that marijuana (on January 18, 2010) is a medicine in direct contrast to the state's current criminal classification as a schedule 1 drug - having no medical value.

N.J.S. 24:21-3 had provided:

“d. The State Department of Health shall update and republish the schedules in sections 5 through 8 on a semiannual basis for 2 years from the effective date of this act and thereafter on an annual basis.”

 

The Legislature amended that provision in 2007.  It now reads:

"d. The director shall update and republish the schedules in sections 5 through 8.1 of P.L.1970, c. 226, as amended and supplemented (C.24:21-5 through 24:21-8.1) periodically."

 

When Governor Corzine signed this Act into law it told the defendant Edward Forchion (a licensed medical user in the state of California) that now New Jersey had also allowed its use.  This Act of legalizing marijuana for medical purposes clearly led the defendant Forchion to believe that medical marijuana was now legally permissible in New Jersey.  Yet, the state has failed to legally reclassify marijuana.

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This failure by the State to reclassify, however, does not in any way diminish the defendant Forchion’s argument that a reasonable person (in his position) would have believed he would be entitled to have medical marijuana in his possession.  After the State of New Jersey passed its medical marijuana law on January 18, 2010, the defendant, a medical marijuana card carrying person, brought his medical marijuana with him to New Jersey from California, believing that he would have some legal protection.  As can be seen in the ProCon.org “Medical Marijuana States and DC Summary Chart,” as to whether New Jersey “Accepts other states’ registry ID cards?” this is “Unknown.” (Da25) (nearly half of the medical marijuana states do accept other state’s registry ID cards).  As even this study is unclear as to whether defendant’s registry card would be accepted, the defendant should not be punished under the law for not knowing whether he was entitled have medical marijuana in his possession in New Jersey. For these reasons the indictment must be dismissed with prejudice.

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POINT V

N.J.S.A. 2C:35-5A.(1) AND 2C:35-5B.

(10)(A) ARE UNCONSTITUTIONAL ON THE

GROUNDS OF “MEDICAL NECESSITY” OR THE

DEFENDANT IS EXEMPT FROM PROSECUTION

DUE TO “MEDICAL NECESSITY”; THE

INDICTMENT MUST BE DISMISSED

WITH PREJUDICE

 

N.J.S.A. 2C:3-2 (Necessity) provides:

a. Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

 

b. Other justifications in general.  Conduct which would otherwise be an offense is justifiable by reason of any defense of justification provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

 

 

The defendant uses marijuana for medical reasons, and he has a valid California Medical Marijuana card permitting such medical use. (Da12).

 

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Since the marijuana in question emanates from California (where the medical use is legal for the defendant), the “medical necessity” defense is applicable here.

In State v. Tate, 102 N.J. 64 (1986) the defendant, afflicted with quadriplegia, would sometimes have spasticity so severe as to render him completely disabled.  Defendant Tate was prepared to present evidence that the use of marijuana provided relief from the spastic contractions regularly suffered by the defendant, and that no other prescribable medication gives him such relief. Id. at 67.  The Tate defendant raised the justification defense of “medical necessity” based on justifiable conduct under N.J.S.A. 2C:3-2(a).  The trial judge denied the State’s motion to strike that defense, and the Appellate Division affirmed.  A sharply divided New Jersey Supreme Court, in a 4 to 3 decision, reversed and held that the defendant could not assert the statutory defense of necessity because his conduct was not permitted by law.  Also, defendant could not assert the common-law defense of necessity. Id. at 72-73.  Justice Handler dissented, stating: “It is my view that under the Code the defense of justification based on

 

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medical necessity is available with respect to the use of marijuana in the context of the limited and special circumstances that are present in this case.” Id. at 76.  Justices Garibaldi and Stein also dissented, ruling that the defense of medical necessity may be available to certain seriously ill persons as a legal justification to a marijuana possession charge. Id. at 95 to 96.

In U.S. v. Randall, 104 Daily Wash.L.Rptr. 2249 (D.C.Super. Ct. 1976) the defendant, charged with possession of marijuana, used marijuana to treat his glaucoma symptoms.  The Court found medical necessity a defense to possession.

In Washington v. Diana, 24 Wash.App. 908, 604 P.2d 1312 (1979), the defendant, charged with possession of marijuana, used it for relief of the disabling spasticity associated with multiple sclerosis.  The court found medical necessity existed.  In both Randall and Diana the defendant used the drugs based on his own self-diagnosis—-later confirmed by expert medical testimony.

The case sub judice is clearly distinguishable from  State v. McCague, 314 N.J. Super. 254 (App. Div.), certif. denied, 157 N.J. 542 (1998) where the “medical necessity”

 

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defense was held to be inapplicable in a prosecution of members of a nonprofit organization for furnishing or giving a hypodermic needle or syringe to another.  The court reasoned that “There is no fundamental right to obtain a disinfected needle to inject heroin or any other prohibited substance.” Id. at 265. McCague, involving hypodermic needles (and, thereby, heroin use), is clearly distinguishable from Forchion.

For the foregoing reasons and authorities cited, the indictment must be dismissed with prejudice.

 

 

 

 

 

 

 

 

 

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POINT VI

 

THE DEFENDANT SHOULD BE ALLOWED

TO PRESENT EXPERT TESTIMONY ON

THE ISSUES RAISED IN THIS BRIEF

 

At the very least, defendant should be permitted to present expert testimony by the way of an expert witness or witnesses on the issues raised in this brief.

Defendant has the burden to demonstrate that the marijuana laws violate a constitutional provision. See City of Jersey City v. Farmer, 329 N.J. Super. 27 (App. Div. 2000).  However, a defendant also has an essential and fundamental right to interpose a defense based on the invalidity of the legislative act upon which the prosecution is predicated.  The notion that he cannot do so in the criminal proceeding itself constitutes a basic jurisprudential misapprehension. See Federal Rule R. 2:2-3(a)(2) (recognizes right of a defendant in a criminal matter to attack by way of defense to the charge the validity of the regulation upon which the charge is based). See also State v. Hilkevich, (App. Div. Docket No. A-3632-00T3, decided March 5, 2003, annexed at Da45).  In Hilkevich, the Appellate Division reversed the defendant’s

 

59

convictions and forty year sentence for child molestations due to the refusal of the trial judge to permit an expert witness to testify—-specifically, the defense sought expert defense testimony that would have supported the defendant’s claim that his responses to accusations when speaking on the telephone were grounded in his professional training. (Da50).  In finding the preclusion of the expert testimony reversible error, the Court stated: “The possibility that defendant might have been convicted because he was improperly prevented from presenting an exculpatory witness was sufficient to support a reversal of his judgment of conviction.” (Da53).

     The following are defendant Forchion’s proposed witnesses:

1) Dr. Julien Heicklien – will testify to rebut the anticipated State’s expert as to the classification of marijuana.

 

2) Chris Conrad – religious expert.

 

3) Ali Ras I – Rastafarian religious expert.

 

4) New Jersey State Senator Nicholas Scutari – sponsored current medical marijuana bill.

 

 

 

 

 

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5) New Jersey State Senator Bassano – sponsored and held state committee meetings explaining medical marijuana.  His testimony is necessary to explain the intent of the bill.

 

6) New Jersey Assemblyman Reed Gusciora – co-sponsored medical marijuana bills; his testimony is needed to explain the intent of the bill.

 

7) Edward E. Alexander, M.D. (California License A45272)

 

 

 

In the case sub judice defendant must be permitted the opportunity to present expert witnesses related to religious freedom and equal protection, and medical necessity.

 

 

 

 

 

 

 

 

 

 

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POINT VII

THE INDICTMENT SHOULD BE DISMISSED WITH

PREJUDICE IN THE INTEREST OF JUSTICE

 

 

Defendant incorporates by reference the arguments and authorities in this brief, supra.

Congress never had the authority to enact prohibition or "drug control" statutes unless they were intended to regulate interstate commerce (Article 1, Section 8, clause 3). See also Nigro vs. U.S., 276 U.S. 322 (1926).  It took the Eighteenth Amendment to enact alcohol prohibition in 1920.  It took the Twenty-First Amendment to repeal the Eighteenth Amendment in 1933.

The 1970 Controlled Substances Acts and N.J.S.A. 2C:35-5a(1) and b.10(a) (hereinafter the acts) comprise a bill of attainder in violation of Article I Section 9 of the United States Constitution and are equally unconstitutional for failing to provide a religious exemption for the use of marijuana.

Even during the alcohol prohibition (“Prohibition”), which began with the enactment of the Volstead Act (the 1919 law giving federal agents the power to investigate and prosecute violations of the Eighteenth Amendment), there was a blanket exception for the manufacture, use, etc., of alcohol for "sacramental purposes" at Title II, section 3.

 

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There has never been a Constitutional Amendment to outlaw drugs and there is nothing in the Constitution that would give our Federal or State governments the power to do so.  The Ninth Amendment states that the enumeration of particular Constitutional rights "shall not be construed to deny or disparage others retained by the people" and the Tenth Amendment where all powers that are not delegated in the document are reserved to the states "or to the people."  In Griswold v. Connecticut, 381 U.S. 479 (1965) (see Justice Goldberg's concurring opinion) it is established that the Ninth Amendment of the Bill of Rights secures our unwritten common law rights.

In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1942) the Supreme Court held that Constitutional Rights cannot be voted on.

Fifteen states (and the District of Columbia) have now legalized marijuana for medical use and on Jan 18th, 2010, New Jersey also recognized marijuana medical use. (Da14-15).  The acts, in several instances, violate the right of all persons to equal protection of the laws. See Article

 

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XIV Section 1 of the Bill of Rights.  The acts enshrine into federal law the opinions of licensed professionals, i.e., the medical community, and whereas the Constitution says nothing about licenses said federal laws are invalid. It is said to be unlawful and mala prohibita to possess, manufacture, dispense or even abandon said controlled substances except in the course of recognized and professional medical or research practice (as determined by the Secretary of Health and Human Services on the basis of the consensus of views of the American medical community - 21 USC 801a, 802(8), 841, 844).  This office (formerly Health, Education and Welfare) is also authorized to make grants, and enter in to contracts, for the collection and dissemination of drug abuse education material, and develop and evaluate such programs, and, acting through the National Institute of Mental Health, to serve as a focal point for the collection and dissemination of information relating to drug abuse - US PL 91-513.

This substantially prejudices law enforcement philosophy, jurisprudence and legislation.

The presumption of innocence until proven guilty is set aside in cases of drug possession by placing the burden of proof upon the defendant who must demonstrate medical permission - 21 U.S.C. § 885.

 

 

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Criminal legislation in the field of medicine should apply only to specific instances of individual danger, and then only at the state level.  The acts, on the other hand, make the subject of criminal legislation differences of opinion with the consensus of opinion of with the American medical community.  The acts authorize conviction irrespective of conduct, loss of self-control or finding of science endangering or threatening to the public health, safety or morals, and welfare.

Another violation of the right to equal protection is the legal standing of people charged with breaking the laws that regulate alcohol and tobacco products.  Those whose charges involve Controlled Substances, cultivation of marijuana for personal use, or sale between consenting adults without complainants, for example, are dealt with much more harshly and severely than merchants who illegally sell tobacco (the number one killer drug) to minors, and alcohol related violations of motor vehicle law.

The acts also violate equal protection since the acts, as applied, are racist.  For thousands of years Africans have used the “herb” marijuana as a medicine and as a sacrament in numerous religions.

 

 

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Through the institution of slavery (1619-1865) and in spite of the First Amendment, this country was founded on Africans were forced to abandon their native religions and accept Christianity (the faith of the enslavers).  Christianity does not recognize marijuana as a sacrament and in fact banned its use.  In 1484, Pope Innocent the VII banned the use of “cannabis” and decreed "cannabis" an unholy herb, Satan’s weed, the herb of heathens, weed of the satanic masses, etc.

Slavery ended over 147 years ago, yet many African-Americans who reject Christianity as their faith (as does this defendant), find laws such as the 1970 Controlled Substance Act (“CSA”) and N.J.S.A. 2C:35-5a(1) and b.10(a) prohibit them from freely exercising African based faiths by banning their religion’s sacrament (marijuana).

The CSA and State marijuana laws also violate title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000(e)), which prohibits discrimination based on race, color, religion, sex and national origin.  United States Public Law 97-280 reaffirms the scriptural basis of our laws and culture.

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Many of our common law rights extend back to the Bible.  In Genesis 1:29, God grants us every herb bearing seed (which “marijuana” is).  Genesis 1:11 states: "And God said, Behold, Let the earth bring forth grass, the herb yielding seed, and the fruit tree yielding fruit after his kind, whose seed is in itself, upon the earth: and it was so.”  Genesis 1:12 says, “And the earth brought forth grass, and herb yielding seed after his kind, and the tree yielding fruit, whose seed was in itself, after his kind: and God saw that it was good”.  For defendants such as Forchion, following the Bible can put a citizen in criminal jeopardy.

Provisions for the protection of human rights are also made in the Charter of the United Nations; the Chapter I Article 1 (1) respects "the principle of equal rights and self-determination of peoples..."  Article 1 (3) promotes the fundamental freedoms for all without distinction as to race, sex, language or religion."  Article 19 promotes the free exchange of ideas and information.  Further, the United Nations Universal Declaration of Human Rights declares that participation in the cultural life of the community is a right.

 

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Drug control treaties cannot compel the United States or New Jersey to violate the Constitution.  See Reid v. Covert, 354 U.S. 1, 17 (1956) (Supreme Court has uniformly recognized supremacy of the Constitution over a treaty).

While it is clear to some people that the “War on Drugs” violates Constitutional and human rights, the view of those who are vested in law enforcement (or with the power to make laws and interpret rights) consider it a foregone conclusion that the drug laws are constitutional.  To even bring up the topic of rights may harden the resolve of lawmakers and judges because it implies that they have failed to understand the true meaning of the Constitution.

In fact, this defendant has been persecuted by the State of New Jersey in the past for publicly holding this stance, and the very prosecution before this court is another instance of this stance. 

The defendant Forchion was jailed here in the Burlington County Jail for 5 months for publicly questioning the drug laws. Forchion v. ISP, et al. 240 F.Supp.2d 302 (D.N.J. 2003) (Da98-107).

In another instance in November of 1998, the Burlington County Family Court in Forchion v. Judge Maria

 

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Bell, (Superior Court, Appellate Division Docket Number A-006005-02T2), took parental rights from Forchion for publicly declaring his choice in religions and his avocation of legalization of the sacrament marijuana.  At the time the defendant had not been found guilty of any crime and had never been accused of supplying “marijuana” to his child; it was simply for expressing his religious belief that this sacrament should be legal.  These beliefs became public when Forchion ran for a seat in the United States Congress (1st District), and ran for Camden County Freeholder under the “LEGALIZE MARIJUANA PARTY” slogan.  It clearly is dangerous to publicly question the drug laws.

     It is apparent that the defendant Edward Forchion has been persecuted for long enough due to his positions on the marijuana laws.   For these reasons (and the grounds raised in this brief), the indictment must be dismissed with prejudice.

 

 

 

 

 

 

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POINT VIII

INTERNATIONAL LAW AND TREATIES

PROHIBIT THE INTERFERENCE WITH

DEFENDANT’S RELIGIOUS USE OF CANNABIS

 

International law and treaties prohibit the interference with defendant's religious use of cannabis for sacramental purposes.  The international law doctrine of comity requires that United States tribunals give consideration in areas that implicate international interests. See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).  The application of the principle of comity is strengthened in the area of religious practice by Congress' recent actions of ratifying a treaty and enacting a statute to advance international reciprocity in the protection of religious freedom.  In the oft-quoted definition the Supreme Court provided over a century ago, comity is "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation." Hilton, supra, 159 U.S. at 163-64.  The comity doctrine "refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states."  Societe Nationale Industrielle Aerospatiale v. United

 

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States District Court, 482 U.S. 522, 544 n. 27 (1987); see also id. at 555 (Blackmun, J., concurring in part and dissenting in part) (comity is "a principle under which judicial decisions reflect the systematic value of reciprocal tolerance and goodwill").  The defense to foreign legal and political judgments embodied in the comity principle "fosters international cooperation and encourages reciprocity, thereby promoting predictability and stability through satisfaction of mutual expectations". Spatola v. United States, 925 F.2d 615, 618 (2d Cir. 1991).

Although comity is often invoked in resolving differences between judicial tribunals at home and abroad, the principal applies equally to "legislative" and "executive" acts of foreign governments. See Hilton; see also Phila. Gear Corp. v. Phila. Gear de Mexico, S.A., 44 F.3d 187, 191 (3d Cir. 1994) ("Under the principle of international comity, a domestic court normally will give effect to executive, legislative and judicial acts of a foreign nation.") (quotations omitted).

One way in which courts and administrative agencies frequently apply comity is through the canon of statutory construction that, where reasonably possible, statutes

 

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should be construed and applied so as not to offend the norms of international law, including the principle of comity. See Hilton 159 U.S. at 164-66; see also United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir. 1945) (L. Hand, J.) (describing comity as a "limitation[] customarily observed by nations upon the exercise of their powers" and holding that "we are not to read general words [in a statute] without regard" to such norms).  Such international law is "part of our law." Hilton, 159 U.S. at 163.  As Chief Justice Marshall explained long ago, a statute "ought never to be construed to violate the law of nations if any other construction remains." Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); see also Grunfeder v. Heckler, 748 F.2d 503, 509 (9th Cir. 1984) (en banc) ("Absent an expression of congressional intent to the contrary, considerations of courtesy and mutuality require our courts to construe domestic legislation in a way that minimizes interference with the purpose of effect of foreign law."); Restatement (Third) of Foreign Relations Law § 114 (“Where fairly possible, a United States statute is to be construed as to not conflict with international law or with an international agreement

 

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of the United States.").  Adding support to this argument, in 1992, the United States Congress ratified the United Nations International Covenant on Civil and Political Rights ("ICCPR"). See 138 Congo Rec. S4781-84 (1992).  Article 18(1) of that treaty provides:

Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in the community of others and in public or private, to manifest his religion or belief in

worship, observance, practice, and teaching.

U.N. International Covenant of Civil and Political Rights, Dec. 16, 1996.

This congressional action strengthens the applicability of the general doctrine of comity in a case such as this involving religious freedom.

A similar affirmation of the primacy of religious belief is embodied in Article 18 of the Universal Declaration of Human Rights, which the United States endorsed as a member of the United Nations in 1948. See U.N. Universal Declaration of Human Rights, Ga. Res. 217A, Dec. 10, 1948.  The ICCPR and the Universal Declaration protect

 

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not just "belief' in the abstract, but the right to "manifest" that belief through practice.  As the United Nations Human Rights Committee, the principal international body that oversees implementation of the ICCPR, has explained, "[t]he freedom to manifest religion ... in worship, observance, practice and teaching encompasses a broad range of acts" including "ceremonial acts" and "participation in rituals." See U.N. Hum. Rts. Comm., General comment No. 22, at 4 (1993).

The Rastafarian ceremonial use of cannabis falls squarely within this concept of "manifesting" religious belief, and so precisely the type of practice that Congress intended to protect worldwide by ratifying the ICCPR and, earlier, the Universal declaration.  The obligations under these documents are not merely ones of neutral noninterference.  By ratifying the ICCPR, the United States agreed "to take the necessary steps...to adopt legislative or other measures as may be necessary to give effect to the rights recognized in the present covenant."  A prosecution of a member of the Rastafarian religion for his use of cannabis in his religious ceremony is just such a "measure"

 

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that is "necessary to give effect to" the rights enshrined in the ICCPR and the Universal Declaration.  These treaty obligations reinforce the government's duty to permit the free exercise of religion that the Free Exercise Clause and the RFRA already impose.

Congress' recent enactment of the International Religious Freedom Act ("IRPA"), Pub. L. No. 105-292, 112 Stat. 2788 (1998) (codified at 22 U.S.C. §§ 6401-6481 (Supp. IV 1998)), further reflects its commitment to enhancing religious freedom across national boundaries, and further supports the comity rationale for permitting the Rastafarian religion to make sacramental use of cannabis in the United States.  In the RFRA, Congress described religious freedom as "a fundamental right" and a "pillar of our Nation," and noted that the United States has "honored this heritage by standing for religious freedom and offering refuge" to those from abroad who sought to practice their religion in the United States. 22 U.S.C. § 6401(a).

The IFRA was needed, Congress found, because over half the world's population lives under governments that "restrict or prohibit the freedom . . . to . . . believe,

 

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observe and freely practice the religious faith of their choice." Id.  Congress established "the policy of the United States" to "promote...freedom of religion," and to "work with foreign governments that affirm and promote religious freedom, in order to develop multilateral ... initiatives to ... promote the right to religious freedom abroad." 22 U.S.C. § 6401(b).

Although the IRFA was aimed at abuses of religious freedom occurring outside the United States, through IRFA Congress has expressed a strong view of the necessity of international tolerance of religious practice.  In enacting the IR.FA and establishing the position of Ambassador at Large for International Religious Freedom, see 22 U.S.C. § 6411(a), Congress was acutely concerned about the way other nations treated religious practices of Americans abroad, and about their treatment of foreign adherents of religions that are important to Americans.  A representative of American missionaries told a Senate committee that "over 170,000 Americans, representing over 800 denominational and nondenominational agencies, are involved in some type of religious work overseas" and that these individuals "have

 

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an enormous stake in" the IRFA because of obstacles they face abroad. See International Religious Freedom Act of 1998, Hearings on S-1868 Before Senate Foreign Relations Comm., 105th Cong., 2d Sess., 1998 WL 375933 (F.D.C.H.) (statement of Rev. John Akers) [hereinafter "IFRA Hearings"].  Clearly, the IFRA represents Congress's strong statement that other nations should permit free exercise of all religions within their borders.  Any other position by the United States government would undermine its moral authority to urge, and thus its practical ability to persuade, other nations to respect non-indigenous religions within their own borders.

     For the State of New Jersey (an American State) to ignore the religious practices of this defendant, or other similarly situated Rastafarians, will make America appear hypocritical when it criticizes China for its persecution of the Falun Gong religious sect, or of Saudi Arabia, Iran and Pakistan’s treatment of Christians.  In America today “religious herb users” (Rastafarians in particular) are hunted down like the witches of Salem witch trials but on a much larger scale (with 858,408 arrested nationally in

 

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2009; about 96.9 per hour).  Rastafarians convicted of marijuana offenses are forced to go to “drug programs”, i.e., NA, AA, etc. in which the New Jersey State Correctional department forces upon all inmates (including those whose religions believe that the God-grown herb Ganja is good).  Prison drug programs are mandated/forced through the I-override system.  The I-override system is a prison administrative mechanism for blocking an inmate’s release.  If a person has an I-override he is not eligible for “minimum status” or for parole/release or programs until the I-override is removed.  The Department of Corrections requires all persons convicted of a drug crime to attend and complete a drug program while in prison; if a prisoner refuses or fails the drug program an I-override is placed on him and he cannot be released.  When incarcerated the defendant had refused the drug program and an I-override was placed on him to try to force him to accept that Ganja is bad, sinful, ungodly and/or worst “a drug.”  The defendant wrote to Federal Judge Irenas (who had ordered defendant back in the State ISP Program) complaining about the I-override and Judge Irenas agreed and the I-override was removed.

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Rastafarians in New Jersey feel as persecuted in America as a Falun Gong member forced by the Chinese government into “education programs” to correct their beliefs.

     As stated, this very defendant was forced into such a re-education program called “The Bridge Program” at Riverfront State Prison in 2001 in which a “higher power” other than “Jah Rastafari” (the one defendant adheres to) resulted in an I-Override.  The defendant fears that another conviction would again subject him to the blatant religious indoctrination that his state engages in through its prison system; under the guise of and in the name of its drug war.  There is no doubt in the defendant Edward R. Forchion’s mind that the enlightened ones of the future will look back with ridicule and compare today’s Christian Inspired “persecution of herb users” (with marijuana arrests, unemployment and child custody) to the witch trials of Salem.  Today most Americans view the Salem Witch trials as past aberrations of Christianity without accepting that our current marijuana laws are equally based on Christian superstition.  Defendant acknowledges that in

 

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the past he could have been burned at the stake and beheaded; while happy not to face such a fate as burned and beheaded he equally does not want to be imprisoned again for his belief that marijuana is a sacred herb.See http://www.youtube.com/watch?v=jE8qxB8vK9M.

     Significantly, the State of New Jersey was previously found to have violated the defendant Forchion’s rights by incarcerating him for the exercise of his First Amendment right to advocate a change in the marijuana laws.  See Forchion v. Intensive Supervised Parole, 240 F.Supp. 302 (D.N.J. 2003; annexed at Da98-107; see Opinion online at http://www/aele.org/law/2003JBJUN/fvi.html).

     Defendant has previously attempted to raise the issue of religious freedom.  On March 16, 2000, at the New Jersey Statehouse, following a Christian prayer by the speaker of the State Assembly, the defendant said a Rastafarian prayer and ingested marijuana.  The defendant was charged in a summons and attempted to raise the religious defense in the Trenton Municipal Court where the case was heard.  Rather than litigating the issue, the State dismissed the case. See articles describing this at

www.njweedman.com/state_house_protest.html.

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     On June 5, 2000, at the front door of the Burlington Country Courthouse (this very same courthouse) the defendant said a Rastafarian prayer and smoked marijuana with the purpose of receiving a ruling on the religious freedom issue.  He was again arrested and issued a summons by the Burlington County Sheriff’s Department.  Again, the State avoided the religious freedom issue and dismissed the case. See www.njweedman.com/times-06-09-00.html.

For these reasons, the indictment against the defendant must be dismissed with prejudice.

 

 

 

 

 

 

 

 

 

 

 

 

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CONCLUSION

     For the foregoing reasons and the authorities cited, the defendant Edward R. Forchion respectfully submits that the indictment must be dismissed with prejudice.  At the very least, the defendant must be afforded the opportunity to present an expert witness(es) to support his positions.

 

                              Respectfully submitted,

 

 

                              ____________________________

                               JOHN VINCENT SAYKANIC, ESQ.

 

 

Dated: April 20, 2011         ____________________________

                               EDWARD R. FORCHION, PRO SE

 

 

 

 

 

 

 

 

 

 

 

 

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