U.S. DISTRICT COURT

600 MARKET STREET

PHILADELPHIA, PA 19101

 

 

                  APPEAL DOCKET NO.: 04-949-M (A)

 

                                 

                            CRIMINAL ACTION

 

U.S. PARK POLICE,

UNITED STATES,          AMENDED APPEAL-BRIEF

  Plaintiff,            CONVICTION & SENTENCE

v.                      of FEDERAL MAGISTRATE Ct

EDWARD R. FORCHION,

“NJWEEDMAN.COM”            

  Defendant.        

 

 

                                   SAT BELOW      

 

                        Hon. Ronald Rapoport, U.S.C.

                        (July 29th, 2004 Pre-trial)

                        (September 28th, 2004 Pre-trial)

                       (Nov 10th, 2004 Trial)

                       (Nov 12th, 2004 Sentencing)

                       (Jan. 15th, 2005 Sentence Stayed)                     

________________________________________

APEAL BRIEF

ON BEHALF OF DEFENDANT

“NJWEEDMAN.COM”

Legally Known As:

EDWARD FORCHION

________________________________________

 

 

                                Pro Se,

                                Edward Forchion

                                1020 Hanover Blvd.

                                Browns Mills, N.J.08015

                                

                                (609) 893-3543 home #

                                (609) 509-0133 cell #

 

Edward  Forchion, Pro Se    THE DEFENDANT IS NOT CONFINED

TABLE OF CONTENTS

 

                                                                                   

                                                                                          Page No.

 

TABLE OF CONTENTS ....................... 2

 

TABLE OF AUTHORITIES .................... 3

 

PRELIMINARY STATEMENT..................   4

 

SUMMARY OF CASE .......................   6

 

FACTS .................................   9

 

LEGAL ARGUMENTS  ....................   10

 

(1)                                   THE MOST SERIOUS ERROR COMMITTED BY THE MAGISTRATE COURT WAS ITS ERROR IN ITS INTERPRETATION OF THE VALIDITY OF (THE RFRA) the 1993 Freedom of Religion and Restoration Act (42 U.S.C. §2000bb(a)).

(2)                                  THE NEXT ERROR COMMITTED BY THE MAGISTRATE COURT WAS ITS DENIAL THAT WHAT OCCURRED ON THESE DATES WERE RELIGIOUS WITHOUT A PROPER THEOLOGIAN’S TESTIMONY.

(3)                                  VIOLATION OF THE ESTABLISHMENT CLAUSE

(4)                                  PROPAGANDA: “DRUG COUNSELING TESTING

(5)                                  UNCONSTITUTIONAL CONDITIONS OF PROBATION

(6)                                  The reason(s) these conditions are “constitutionally” volatile

(7)                                  violation of the equal protection clause

(8)                                  ANALYSIS OF THE RFRA

(9)                                  ANALYSIS SUPREME COURT UDV DECISION

(10)                              CONCLUSION

(11)                              APPENDAGES                ………………………………26

 

 

 

 

 

TABLE OF AUTHORITIES

Below are all the case’s cited in this brief

 

 

 

THE U.S. CONSTITUTION’S First Amendment and 14th Amendment

(42 U.S.C. §2000bb(a))

City of Boerne v. Flores, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)

People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002

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

Kerr Vs Farrey, 95 F.3d 472,

Warner Vs Orange County Dept. of Probation, 115 F.3d 1068

FORCHION v ISP,STATE OF NEW JERSEY, 240 F.Supp.2d 302.

United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996)

Mack v. O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996).

O Centro Espirita v. Ashcroft, 314 F.3d 463, 467  ).

SMITH vs UNEMPLOYMENT, 494 U.S. 872, 110 S.Ct. 1595, 108

L.Ed.2d 876 (1990),

UNITED STATES Vs BAUER, 84 F.3d 1549, 1556 (9th Cir.1996),

MCBRIDE Vs SHAWNEE CITY ,71 F.Supp. 2d 1098, 1100 (5th Cir) 1999, STEELE Vs BLACKMAN, 236 F.3d (3rd Cir.) 2000 

Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001

 

UTILIZED TRANSCRIPTS

 

September 28th, 2004

November 10th, 2004

November 12th, 2004

 

            I Edward Forchion the defendant in this case now moves to appeal the conviction and sentence handed down by the magistrate court on Nov. 12th, 2004.   I am untrained in the legal procedures and legalese required in Federal Court as such please accept this Pro Se Appeal-brief on face value lieu of a formal legal brief prepared by a trained lawyer.

 

PRELIMINARY STATEMENT

 

               It is no secret that I want to make a difference in the world, and this case in my eyes may just do that. It was no mistake that we were arrested on Dec 20th, 2003; March 17th, 2004 and April 18th, 2004 we openly and lovingly broke what we believe to be an immoral law.  A law which we both understood could be legally defended under the provisions of the RFRA. We preformed an “legal religious ceremony” on federal property. We truly believed because we were doing so on federal property it was perfectly legal, and believe if the courts follow the laws we would be found not-guilty and thus set a precedent that would led to the LEGALIZATION of our faiths practices.

 

    We do not dispute that we smoked ganja on the three dates cited on the citations, so the Government need not prove that.  What we do dispute is the rulings handed down by Magistrate Judge Rapp port saying the 1993 RFRA does not apply to the third circuit and the sentence imposed.  We also challenge the governments attempts at saying that just because what it deemed to be simply a protest, we didn’t hold a prayer service.  THIS IS PENNSYLVANNIA! Now in any other state “we” might understand the ignorance. But this state was founded on “religious freedom” by William Penn a Quaker who was escaping persecution from the Government (Church) of England. William Penn was arrested for holding a illegal public prayer services in “PROTEST” of government policies that prevented him from practicing his faith.  This case is the result of Pat Duff and myself’s deliberate attempt at re-creating the Penn trial here in 2005.

 

    It’s no secret we openly and lovingly put ourselves in harms way in order to peacefully change the oppressive laws as it pertains to the “religious use of cannabis”. The peaceful method of change is no different than William Penn and Martin Luther King Jr. did for their causes in order to effectuate great change. This what makes our country so great, we can do this thru the the justice system and not thru blood shed.  Now while we know our justice system isn’t always fair or perfect, which is kind of obvious since we at this time have been convicted for our religion, yet it is all we have to change the current state of affairs. 

 

    Martin Luther King Jr. once said; “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."

 

 I Edward Forchion here and “sometimes” referred to as “NJWEEDMAN” claims the Federal Magistrate Court (Judge Arnold Rapoport) on Nov. 12th, 2004 “falsely/inaccurately” or just in plain error mis-interpreted the validity and jurisdiction of the Freedom of Religion and Restoration Act (42 U.S.C. §2000bb(a)) as A NATION-WIDE ACT. The magistrate court falsely claimed the FRRA did not apply to the 3rd circuit (“wasn’t the law here”) and was the genesis of our erroneous convictions. This misinterpretation denied NJWEEDMAN and (co-defendant) Patrick Duff –“DUFFMAN” a fair and just trial. Factually the FRRA was passed as a nation-wide law in 1993. True, in 1997 the RFRA was limited by the decision in City of Boerne v. Flores, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) to federal jurisdictions only. In 2002 the RFRA was again up held in People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) which once again ruled that the RFRA was valid in Federal Jurisdictions. In addition to that, this sentence ignores the basic Constitutional protections of the 1st Amendment namely “FREEDOM of RELIGION”.

 

 

RASTAFARISM is as illegal a religion in America today to Edward Forchion as QUAKERISM was in England to William Penn. My goal is to change this.

 

SUMMARY OF CASE

 

The U.S. Constitution’s 1st amendment was ratified on 12/15/1791. The first Amendment gives every citizen the right to choose their own faith according to their own convictions. “NJWEEDMAN” was born July 23rd, 1964 to African-American parents who were practicing Christians (Baptist). After watching the TV mini-series “ROOTS” by Alex Haley Jr I rejected Christianity as the religion of our former enslaver’s and forced onto our people thru the 350+ year “Christian condoned” institution of slavery. Even at age 12 I viewed myself as “free” and sought a religion more appropriate for a “free African”.  I choose Islam. My thinking at the time was if I’m not a slave why must I continue to practice the Religion of our slavers. Around 18 years of age I also rejected Islam and became out-spoken Atheists. Which I remained until age 30 when I had a profound religious experience while contemplating suicide in Tucson Arizona in the spring of 1994. This experience guided me to accept the faith of RASTAFARI to which I still remain. I have been a very vocal proponent of my faith and publicly proselytize my beliefs and practices. This public avocation of my faith and practices has led government authorities as well as private Christian citizens to persecute me for my choose in religions.

 

In 1996 I read about the case of DAWN MEEKS (United States v. Bauer, Meeks, 84 F.3d 1549 (9th Cir. 1996)) a practicing RASTAFARIAN who was imprisoned for her faith. Because of her case I became aware of the 1993 Freedom of Religion and Restoration Act (42 U.S.C. §2000bb(a)) and then the case of People of Guam v. Guerrero.  (APPENDIX 1 and APPENDIX 2)

 

In 2000 I myself was imprisoned similarly to MEEKS in the State of New Jersey. On April 3rd, 2002 I was released from state prison into the State of New Jersey’s Intensive Supervision Program. My ISP officer attempted to force me into NA/AA which I regard as Christian indoctrination. (I successfully fought the ISP requirement of N/A and A/A sermons by citing: Kerr Vs Farrey, 95 F.3d 472, and Warner Vs Orange County Dept. of Probation, 115 F.3d 1068.) On May 28th, 2002 I read about the victory of GUERRERO in People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002); which ruled the RFRA did allow for the “religious use of marijuana” in federal juristictions. Ironically, I was arrested by State authorities on June 6 and held until June10th,  2002 for publicly talking about my beliefs in front of the Burlington County Courthouse.  I was only released when I “feinted” to my Christian ISP officers that I would not talk about my faith in public again.  (APPENDIX 3 and APPENDIX 4)

 

When I re-nigged on this promise and did once again voice my opinions and beliefs; I was arrested on August 19th , 2002. (APPENDIX 5) Ineffect: I was imprisoned; for proselytizing about my faith, beliefs and practices but this time the State intended to send me to prison for 10 years. On Oct. 9th, 2002 from the Burlington County Jail I filed a “Writ of Habeas Corpus” in Federal Court alleging that 4 State of New Jersey officials had imprisoned me illegally in retaliation for me exercising my 1st Amendment rights. On Jan 24th, 2003 after 5 months in the Burlington County Jail Federal Judge Irenas (District Court of New Jersey (Camden)) agreed with me and ordered that I be released from the BC jail and returned to the ISP citing I was illegally imprisoned for exercising 1st Amendment rights FORCHION v ISP,STATE OF NEW JERSEY, 240 F.Supp.2d 302. (APPENDIX 6)  

 

On Dec. 3rd, 2003 I was released from ISP and celebrated by having a private religious ceremony at the Liberty Bell; where I also announced I would have a public demonstration of the legal “religious use” of marijuana on federal property every 3rd  Saturday of each month specifically on independence mall near the liberty bell. Thus in remembrance of William Penn, who the state of Pennsylvania owes it’s name and we as Americans’ owe, “freedom of Religion, Speech, our Right(s) to petition for redress, a fair a trial  and Assembly. The first of these public ceremonies was held on Dec., 20th, 2003 from which I was arrested and this case anise’s. Privately, I pray on Fort Dix military reservation almost daily, which I also believe to be legal. (I live within a couple hundred yards of Ft Dix). I also pray at my “house” which I have designated to the State Attorney General as my place of worship THE JAH RASTAFARI CENTER. (APPENDIX 7 )

 

On Dec. 20th, 2003 I was arrested for engaging in what I truly believe is legal per the RFRA and once again on March 20th, 2004 and April 17th, 2004. I was arrested along with co-defendant Pat Duff.

 

On December 20, 2003, defendant NJWEEDMAN was issued Violation No. P028826 and defendant Duff was issued Violation No. P257101, both for possession of a controlled substance within a national park in violation of 36 C.F.R. §2.35(b)(2). – These actions were video taped by defendants and presented in court.


On March 20th, 2004 Defendants (NJWEEDMAN and Duff) were both  issued violation notices for possession of a controlled substance within a national park (Violation No. P257995 to NJWEEDMAN and No. P257040 to Duff).  In addition, NJWEEDMAN was issued Violation No. P257996 for interfering with agency functions, 36 C.F.R. § 2.32(a)(1), because NJWEEDMAN ingested (ate) the marijuana.- These actions were video taped by defendants and presented in court.

 

On April 17, 2004, NJWEEDMAN was issued Violation No. P257037. Duff was issued Violation No. P256628 for interfering with agency functions.  In addition, I was issued Violation No. P257038 for disorderly conduct in violation of 36 C.F.R. § 2.34(a)(2) - These actions were video taped by the defendants and presented in court.

 

 

 .    

On September 28, 2004, hearings were scheduled before the magistrate Court on the violation notices issued on December 20, 2003 and March 20 and April 17, 2004 in connection with my public ceremonies (ingesting marijuana) in Independence National Historical Park.  I submitted a Pro Se brief, to the Court and the government a pleading denominated as “Motion: To Dismiss ‘Affirmative Defense’ of Religious Freedom (42 U.S.C. §2004bb(a)).”  The Court directed the government to submit a written response to this pleading. 

On Nov. 10th, 2004 the defendants submitted two videos of the arrests and the federal government submitted a brief, in the Governments brief it’s say’s this:

 

In limited circumstances, the RFRA creates an affirmative defense in a criminal prosecution (*1).   To state a prima facie free exercise claim, a defendant must establish, by a preponderance of the evidence, three threshold requirements:  “The governmental action must (1) substantially burden, (2) a religious belief rather than a philosophy or way of life, (3) which belief is sincerely held by the defendant.”  United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996)(citations omitted).  Only if the defendant establishes these threshold requirements does the burden shift to the government to demonstrate that the challenged regulation furthers a compelling state interest in the least restrictive manner.  Id.

A substantial burden “is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits, or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs.”  Mack v. O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996).

  

On Nov 10th, 2004 at trial Judge Rapoport failed to view the entire video tapes which clearly showed at 4:20 pm we engaged in a Religious ceremony. Despite the defense clearly meeting the burden spelled out in the language of the RFRA the magistrate court Judge denied the “MOTION TO DISSMISS” by falsely, knowingly or in plain error claimed “the 1993 Freedom of Religion and Restoration Act (42 U.S.C. §2000bb(a)) didn’t apply to the 3rd district”. And further claimed that what little he did witness on the video tapes didn’t look like a Religious ceremony to him.

 Factually we all know the RFRA was enacted as a nation-wide law in 1993 and has never been repealed by congress!!! The defense asserted at the time the Judge was making a making a legal error and we made it clear on the record that this “denial” would be appealed based on the Judge’s legal “ERRORS” and misapprehenition(s) of the law. Clearly the magistrate court (Judge Rapoport) failed to comprehend the rulings and interpretations in (United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996)), City of Boerne v. Flores, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) and  People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) or more recently the case of O Centro Espirita v. Ashcroft, 314 F.3d 463, 467  ).

The defense requested a “stay of sentence pending appeal” from the trial court Judge at the conclusion of the trial, but Judge Rapoport denied that request. Then the defendant(s) in this case motioned to the District Court to “stay the sentence pending a “legal appeal”. The District Court granted the “STAY”. Clearly the defendants were acting under the true and legal belief that their actions were and are legal after reading and comprehending the rulings of the 9th circuit and U.S.C..

FACTS

(1) - On Nov 16th, 1993 then President Bill Clinton signed into law the RFRA of 1993 as a nation-wide law. In 1993 the bitterest of enemies, left and right, banded together to pass the Religious Freedom Restoration Act. Only seven months after the act was passed by a rare unanimous vote in the House and a nearly unanimous vote in the Senate. The Act was a clear message from the Legislature in reaction to the SMITH vs UNEMPLOYMENT decision.

(2) - I am a American Rastafarian by faith and have sworn in court to this before and have never been contested by a Government official.

(3) – Religions that use “sacraments’ other than those of the Christian majority are outlawed here in American under the ruse of DRUG LAWS.

(4) – The religion of Rastafari is as illegal in America today as Quakerism was in England in 1705.

The Colonists who signed the declaration of Independence here at independence hall in Philadelphia on July 4th, 1776 actually had less justifiable reason to revolt than non-establishment Americans have today. Very, very few were imprisoned. When laws become insufferable instruments of plunder, revolution is justified. Today our government has over one million people in it’s prisons for breaking “DRUG LAWS” which fly in the face of the principals of freedom, liberty and independence the founding fathers envisioned on that day.  Never did these “freedom loving patriots” envision that one-day the government they founded would attempt to regulate even the very bodies of the citizens of this great experiment. Never could they have envisioned that one-day the very hemp paper they wrote the Declaration and Constitution would be illegal as part of a “prohibition” in a proclaimed free society.

 

 

LEGAL ARGUEMENTS

 

(1)   THE MOST SERIOUS ERROR COMMITTED BY THE MAGISTRATE COURT WAS ITS ERROR IN ITS INTERPRETATION OF THE VALIDITY OF (THE RFRA) the 1993 Freedom of Religion and Restoration Act (42 U.S.C. §2000bb(a)).

 

On numereous occasions during the trial the Court claimed the RFRA wasn’t a nation-wide Act. The defense points to:  

 

11/10/04 TR Transcript  page 88 line 16-22.

The Court: “its not the law here”.

11/10/04 TR Transcript  page 102 line 9-10.

The Court : “its not legal here”.

11/10/04 TR Transcript  page 105 line 3-7.

The Court: “Its not the law here”.

11/12/04 TR Transcript  page 9 line 22-24.

Ms Hayes: “I think you honor followed the law in correctly ruling the Religious Freedom and Restoration Act did not apply”.

11/12/04 TR Transcript  page 17 line 21-24.

The Court: “You have attempted to decide for yourselves without any legal                 counsel what is the law in this country and your absolutely wrong whatever they say in the ninth circuit.

 

It is clear this was a Judicial error: Both Judge Dalzell and Judge Surrick here in the 3rd circuit have both have utilized the RFRA to decide case’s. (Unites States Vs Philadelphia yearly meeting of the religious society of friends and Black-hawk Vs game Commission ) But more importantly the U.S. Supreme Court once again has up-held the RFRA in its recent decision of: O Centro Espirita Beneficiente Uniao do Vegetal Vs United States. It is crystal clear that it was Judge Rapoport who didn’t understand the law not these defendants. The RFRA is a nation-wide law that does apply to the 3rd circuit and based just on this Judicial mis-interpretation of Federal law should justify a new trial or immediate dis-missal of the current charges.

 

(2)   THE NEXT ERROR COMMITTED BY THE MAGISTRATE COURT WAS ITS DENIAL THAT WHAT OCCURRED ON THESE DATES WERE RELIGIOUS WITHOUT A PROPER THEOLOGIAN’S TESTIMONY.

On each of these occasions we held a “REASONING CEROMONY” and invoked the name of “GOD”, and prayed in the Park for the harm caused to American citizens by our Governments ridiculous drug policies. We prayed that this persecution would end and that our Governments policies should change while pointing out how “RACIST” they were. What we were doing was accurately described by us as RELIGIOUS. The court in error rejected this:

 

The Court:  “the fact that …you prayed… or mentioned some religious subject does not make this a religious ceremony”.

 

We invoked the name of “GOD”, advertised the event as a religious event and actually held a prayer service! What more does the court ask to point out the religious significance? Should we wear collars, and hold hands with little boys while praying next time? Who is this Judge to decide what is and what is not religious? Who does the government decide what “sacraments’ can be used for religious services?

While (the grape) wine is the sacrament of Christians and used whenever a so called Christian is moved to ingest it - it is legal; i.e. before during and or after breakfast, lunch and diner. In Court the U.S. Attorney seems to attempt to argue for a Governmental restriction on the times a Rastafarian can use “marijuana”.

11/10/04 trial transcript page 39 line 9-11

 
Ms Hayes: “We are aware of nothing in any of these writings that talks about the Rastafarianism requires defendant to smoke marijuana 24/7 including” --

3 - VIOLATION OF THE ESTABLISHMENT CLAUSE

The sentence handed down on Nov. 12th, 2004 is “unconstitutional” on its face, and appears malious, deliberate and a blatant violation of 1st Amendment Rights to “Political Expression”, “Freedom of Speech and Religion” specifically. The magistrate court, is attempting to prohibit the practice or avocation of the (*RASTAFARIAN religion) because it doesn’t conform to the standards of (the Judge’s) the Government religion: CHRISTIANITY but more insidious is the courts order of drug counseling which in effect is another attempt to brain-wash the defendants into changing our “religious beliefs” with Government propaganda and Christian theology disguised as a neutral drug program. This has happened to NJWEEDMAN and DUFFMAN on other occasions in the State of New Jersey. This sentence isn’t designed to protect the public or enforce law it is designed to prevent the public practice of my faith. The 3rd Circuit Court of Appeals has used this definition of RASTAFARI in STEELE Vs BLACKMAN, 236 F.3d (3rd Cir.) 2000:


*RASTAFARIANISM: Is a religion which first took root in JAMAICA in the ninth century and has since gained adherents in the UNITED STATES. See: Mircea Eliade, Encyclopedia of Religion pages 96-97 (1998 edition). It is among the 1,558 religious groups sufficiently stable and distinctive to be identified as one of the existing religions in this country. See J. Gordan Melton, Encyclopedia of American Religious pages 870-71 (1991 edition). Standard descriptions of the religion emphasize the use of marijuana in cultic ceromonies designed to bring the believer closer to the divinity and to enhance unity among believers. Functionally, marijuana known as GANJA in the language of the religion --operates as a sacrament with the power to raise the partakers above the mundane and to enhance their spiritual unity. UNITED STATES Vs BAUER, 84 F.3d 1549, 1556 (9th Cir.1996), MCBRIDE Vs SHAWNEE CITY ,71 F.Supp. 2d 1098, 1100 (5th Cir) 1999, STEELE Vs BLACKMAN, 236 F.3d (3rd Cir.) 2000 

 

4 -ARGUMENT AGAINST - DRUG COUNSELING/TESTING

N/A- Narcotics Anonymous or its sister program Alcoholics Anonymous are at the forefront of 90-95 percent of all alcohol and drug addiction treatment in this country thus for the sake of the INSTANT CASE I will refer to drug counseling as “NA/AA”. Our court system routinely orders “drug violators” and “DUI offenders” into NA/AA, blatantly violating the establishment clause of the Constitution on separation of church and state. NA/AA has become the de facto form of implementing state religion on citizens that engage in actions considered non-conformist to Christian norm’s. Many law-makers insist NA/AA is not religious but a neutral program for implementing societal norms. A cursory reading of the NA/AA Big Book or its 12 step guidelines should dispel this notion. It is clear that NA/AA promotes a “higher being” which is a “religious concept” whether NA-AA actually calls this higher being, GOD, JAH or JAHWEH makes no difference the concept of a high being means “GOD”, thus it is religious.

Two federal courts and several state supreme courts have held that NA/AA is a religious organization and that no one may, therefore, be compelled by the GOVERNMENT to participate. Kerr Vs Farrey, 95 F.3d 472 and Warner Vs Orange County Dept. of Probation, 115 F.3d 1068.  

In the INSTANT CASE before this court whether the Government uses NA/AA or some form of “religion-less” anti-drug propaganda program. The mere court ordering of these defendants into a “drug program” which attempts to “brain-wash” them into changing thier “sincerely held religious beliefs (that the substance marijuana is good; as their faith teaches them), to the Governments (Christian) irrational belief/position that marijuana is dangerous, addictive and should not be used for anything violates the establishment clause of the Constitution on separation of church and state.

Marijuana is the sacrament of these defendants faith like wine is to Christians or Peyote is to Native Americans or Hoasca is to members of the Uniao do Vegetal church (O Centro Espirita v. Ashcroft, 314 F.3d 463, 467  ). Thus drug testing, violates church and state for it’s sole purpose in this case is to determine if the defendants have continued thier “religious practices and beliefs”.

 

5 - UNCONSTITUTIONAL CONDITIONS OF PROBATION

 

Specifically these conditions of probation are constitutionally volatile:

 

1)   – (condition #7) The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substance, except as prescribed by a physician;

 

2)   – (condition #8) The defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;

 

3)   – (condition  #9) The defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer;

 

4)   – (condition #10) The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer;

 

5)   – (special condition #3) The defendant shall participate in a drug aftercare treatment program which may include urine testing at the direction and discretion of the probation officer.

 

 

6)   – (special condition # 4) The defendant shall not participate and/or attend any marijuana related events/functions and shall refrain from entering the Independent National Park.

 

 

 

 

6 - The reason(s) these conditions are “constitutionally” volatile:

 

1)           – (condition #7) The “herb” marijuana is the sacrament of my faith and I’ve provided testimony to the Court of my use of this sacrament “religiously” every Saturday. The “magistrate Judge” rejected this without obtaining expert testimony or seeing this thru the eyes of a neutral party.

 

2)              – (condition #8) A couple of times a month I attend RASTAFARIAN religious services and this “condition” is specifically designed to prevent me from associating with members of my faith or engaging in activities associated with my faith. The “HERB” marijuana is used at all RASTAFARIAN ceromonies.

 

 

3)              - (condition #9) As above, this condition is designed to prevent me from associating with members of my faith or attending RASTAFARIAN religious services. Due to the RELIGIOUSLY intolerant “marijuana laws” many members of my faith have been convicted of “marijuana crimes”. My “RAS” (religious cleric) has spent time in prison for his use of marijuana as have I.

 

4)              – (condition #10) This condition will subject me to hand over “RELIGIOUS ITEMS” to the “GOVERNMENT” (probation officer), such as my CHALISS. This Challis is used during Religious ceromonies to consume the herb “marijuana” is a similar way Catholics use devices to consume the fruit grape (wine) during Christian services. I operate a house of worship out of the garage in my house and have for years this condition subjects me to a probation violation just for practicing my faith.

 

 

5)            (special condition #3) – This is the most offensive of the conditions and is a special condition designed to “prevent” me from utilizing the sacrament of my faith with the threat of arrest if thru “urine testing” it is discovered that I’m continuing to exercise my religious freedom by using the sacrament of my faith: “marijuana”. This condition is a blatant violation of the Establishment Clause of the Constitution and is further religiously intolerant for it treats my faith like a “DRUG ADDICTION”. I have no drug addiction I have a faith. No amount of Government brainwashing or propaganda will make me change my faith.  These so called treatment programs are really programs espousing “Christian beliefs” and I’m not a Christian  and refuse to attend or listen to this non-sense that marijuana is anything other than what my faith teaches me that it is “GOOD”. This condition is Religiously intolerant and I know for a fact there are court decisions that prevent the Government from force’s me to attend programs designed to “change my belief’s” or accept “GOD” in a Christian way.

 

6)           (special condition # 4) – This condition again would prevent me from attending the religious services of my faith or participating in “political” events that call for the end of the “war on marijuana” which makes my faith a illegal religion in the USA. In the past I’ve had illegal order’s such as this inflicted on me. In 2002 I was ordered by State Officials not to talk about marijuana, talk to the press or associate with other persons who advocate legalization. I refused to comply and was jailed upon which I filed a “WRIT of HABEAS CORPUS” and after 5 months was ordered released by Federal Judge Irenas who cited: 

 

The First Amendment exists so as to promote debate on issues of public importance. In this case, the advocacy of the legalization of marijuana is a legitimate political position in this country. The Libertarian Party, whose presidential candidate received over 380,000 votes in the 2000 election, advocates the legalization of drugs. Libertarian Party website at http://www.lp.org/issues/relegalize.html and http://www.lp.org/campaigns/pres/. Many elected public officials have called for a liberalization of the nation's drug laws. Simply put, Plaintiff's place in this debate will do nothing to harm a public that is already itself debating the current state of our nation's drug laws.

FORCHION vs ISP,STATE OF NEW JERSEY, 240 F.Supp.2d 302.

 

What kind of message does this order send? That Independence Park is only open to “CHRISTIANS”. I have tape of Christians having weddings (religious ceremony) in the park where “wine” is consumed without the Government attacking them as is the case every time I attempt to have a religious ceremony.

 

7 – violation of the equal protection clause of the 14th Amendments

 

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside…..nor deny to any person within its jurisdiction the equal protection of the laws.

 

Through this case “NJWEEDMAN” was treated in a different manner but to sentence us to different sentence’s for the exact same “alleged offense’ reeks of a blatant dis-regard of the equal protection clause of the U.S. Constitution. The Park Police treated the defendants differently. (NJWEEDMAN who is African-American was searched while Pat Duff a causian wasn’t.) Then the Judge sentenced NJWEEDMAN to consecutively while Pat Duff’s sentence’s were concurrent thus if NJWEEDMAN violates his probation he does two 6 month sentence’s while Pat Duff would only serve 6 months.

11/12/04 TR Transcript  page 41 line 6-14

MR. FORCHION:  Why is there different treatment between me and Patrick Duff?
THE COURT:  First of all, Mr. Forchion, --
MR. FORCHION:  I'm just asking the question, your Honor.
THE COURT:  I don't have to explain that and when you can convince the probation service that you have some idea of what the situation is, hopefully with the assistance of your attorney, that's an invitation for the probation service to ask the Court to modify your sentence and I'd be happy to review that when it's appropriate.

 

 

8 - ANALYSIS OF THE RFRA

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”, “the right of the people peaceably to assemble.”

 

In Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), 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. The state of Oregon then denied his application for unemployment benefits because a state statute disqualified individuals who had been fired for work-related “misconduct.” Id. at 874.Smith sued, arguing that the denial of unemployment benefits burdened his First Amendment right to exercise his religion freely. The Supreme Court allowed Oregon to enforce the anti-drug law against Smith. Id. at 884-85.

 

This outraged many members of Congress the bitterest of enemies, on both the left and right, banded together to draft the Religious Freedom Restoration Act. in direct response to Employment Division v. Smith, To much fan-fare and public support Congress enacted the Religious Freedom Restoration Act of 1993 (“RFRA”) (42 U.S.C. §2000bb(a)) as a nation-wide federal law. On Nov. 16t, 1993 President Bill Clinton signed the RFRA into law with these comments:  "The free exercise of religion has been called the first freedom, that which originally sparked the development of the full range of the Bill of Rights. Our Founders cared a lot about religion. And one of the reasons they worked so hard to get the first amendment into the Bill of Rights at the head of the class is that they well understood what could happen to this country, how both religion and Government could be perverted if there were not some space created and some protection provided. They knew that religion helps to give our people the character without which a democracy cannot survive. They knew that there needed to be a space of freedom between Government and people of faith that otherwise Government might usurp." Bill Clinton.

 

 

            In UNITED STATES Vs BAUER, 84 F.3d 1549, 1556 (9th Cir.1996, the defendants, practicing Rastafarians, challenged their 1994 convictions for conspiracy to manufacture and distribute marijuana and distribution of marijuana, along with simple possession of marijuana on the grounds that the convictions violated the RFRA. The Ninth Circuit reversed the convictions for simple possession and held that the prosecution had the obligation to show that universal enforcement of the marijuana laws was the least restrictive means of preventing the sale and distribution of marijuana.* Id. at 1559. The Court explained that in enacting the RFRA, Congress found “the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution.” Id. at 1557. As explained, Congress was critical of Employment Division and enacted the RFRAId.

 

The U.S. Supreme Court in City of Boerne v. P.F. Flores, 521 U.S. 507, 532, 138 L.Ed.2d 624, 117 S.Ct. 2157 (1997) declared RFRA unconstitutional as applied to the States but in no-way did the Supreme Court rule the RFRA was totally unconstitutional, and Congress never repealed it. If congress had intended to repeal it would have; instead congress has allowed the RFRA to remain in good standing. 

 

Thus in People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) (decided on May 28, 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 (like Philadelphia’s Independence Park), thus upholding a portion of the RFRA. In Guerrero, the defendant, a Rastafarian arrested at the Guam airport with five ounces of marijuana and 10 ounces of seeds, was charged with importing the drugs from Hawaii. 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 Bauer Court suggested a hearing to determine whether defendants are Rastafarians and whether the use of marijuana is a part of Rastafarianism. Id. Concerning Meeks’ request for funds under the Criminal Justice Act to retain a theology expert, the Court held that the district court will have to determine whether a reasonable attorney would engage such services. Id. at 1559. which follows other appeals courts, applies to California, eight other Western states, and the Pacific territories of Guam where the case originated and the Northern Mariana Islands. If it became a nationwide standard, it would cover the federal enclaves of WashingtonD.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 (Emphasis in the original).

 

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, 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.

 

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 during the prohibition of Alcohol by providing a “religious defense”. As Rastafarianism regards marijuana as a sacrament necessary to the practice of the religion, issuance of summons are thus unconstitutional and should have been dis-missed by the magistrate Judge.

 

 

 

 

 

 

 

 

 

 

9 - ANALYSIS OF UVD DECISION

 

            The UVD Church and its 8000 members use a substance not normally legal in America as it’s sacrament as does members of the American Rastafarian Religion who members are estimated to number in the hundreds of thousands here in America.

 

(O Centro Espirita Beneficiente Uniao do Vegetal Vs United States)

            The U.S. Court of Appeals for the Tenth Circuit recently ruled federal drug laws do not apply to a particular church under the provisions of the RFRA and the U.S. Supreme Court has upheld this decision.

 

SUMMARY: John Ashcroft, Attorney General of the United States, et al., appeal an order in the United States District Court for the District of New Mexico preliminarily enjoining the government from prohibiting or penalizing the sacramental use of hoasca, a substance containing dimethyltryptamine (DMT), a drug listed in Section I of the Controlled Substances Act (CSA), 21 U.S.C. §§ 801-904, by O Centro Espirita Beneficiente Uniao do Vegetal, a small religious organization. We affirm.

Uniao do Vegetal, President of the Uniao do Vegetal's United States chapter Jeffrey Bronfman, and several other church members (collectively, UDV) filed a Complaint for Declaratory and Injunctive Relief and a Motion for Preliminary Injunction against the United States Attorney General, United States Attorney for the District of New Mexico, the Drug Enforcement Administration (DEA), the United States Customs Service, and the Department of the Treasury (collectively, Government), alleging violation of the First, Fourth, and Fifth Amendments, Equal Protection principles, the Administrative Procedure Act (APA), international laws and treaties, and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1. UDV sought declaratory and preliminary injunctive relief against the Government's penalty or prohibition of the church's importation, possession, and use of hoasca and against any attempt to seize the drug or prosecute Uniao do Vegetal members.

After a two-week hearing, on August 12, 2002, the district court granted UDV's motion for a preliminary injunction in a unpublished Memorandum Opinion and Order.(*) The court rejected UDV's arguments that hoasca is not covered under the CSA and prohibiting the importation, possession, and use of the drug violates the Constitution and international law. However, the court held UDV had advanced a successful RFRA claim.

For purposes of the preliminary injunction, the Government did not dispute UDV had established a prima facie case under RFRA ­ a substantial burden imposed by the federal government on a sincere exercise of religion. See Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001).(2) The burden therefore shifted to the Government to show "the challenged regulation furthers a compelling interest in the least restrictive manner." See 42 U.S.C. § 2000bb-1(b); United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996). The Government asserted three compelling interests in prohibiting hoasca: protection of the health and safety of Uniao do Vegetal members; potential for diversion from the church to recreational users; and compliance with the 1971 United Nations Convention on Psychotropic Substances (Convention). Convention on Psychotropic Substances, opened for signature Feb. 21, 1971, 1019 U.N.T.S. 175 (ratified by the United States in 1980) [hereinafter Convention].

The district court required the Government to prove sacramental hoasca consumption poses a serious health risk to Uniao do Vegetal members and, if sanctioned, would lead to significant diversion to non-religious use. Finding evidence on the health risks to UDV members "in equipoise," evidence on risk of diversion "virtually balanced," and hoasca not covered by the Convention, the court held the Government failed to meet its "onerous burden" under RFRA. Because it found no compelling government interests, the court did not conduct a least restrictive means analysis.

The district court concluded UDV demonstrated "substantial likelihood of success on the merits" and satisfied the other three requirements for preliminary injunction. First, on irreparable injury, the court noted, "Tenth Circuit law indicates that the violations of religious exercise rights protected under the RFRA represent irreparable injuries." Second, on balance of harms, the court held, "in light of the closeness of the parties' evidence regarding the safety of hoasca use and its potential for diversion, the scale tips in the Plaintiffs' favor." Finally, the court reasoned failure to vindicate religious freedom protected under RFRA ­ a statute specifically enacted by Congress, as representative of the public, to countermand a Supreme Court ruling ­ would be adverse to the public interest.

In an order dated November 12, 2002, the court delineated a remedy, preliminarily enjoining the Government from prohibiting or penalizing sacramental hoasca use by Uniao do Vegetal members. The court also required that the church, upon demand by the DEA, identify its members who handle hoasca outside of ceremonies, allow for on-site inspections and inventories, provide samples, identify times and locations of ceremonies, and designate a liaison to the DEA.

The Government moved for an emergency stay of the preliminary injunction pending appeal. On December 12, 2002, we granted the stay, holding UDV failed to demonstrate "clear and equivocal" right to relief. O Centro Espirita v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002).

On appeal, UDV urged us to affirm the district court, contending the Government failed to prove hoasca poses health risks to church members, the Convention does not apply to hoasca, and Uniao do Vegetal's consumption of hoasca is comparable to the Native American Church's exempted use of peyote. Calling for a reversal, the Government's appeal focused on the compelling interests asserted and failed.

 

 

 

 

 

 

 

10 - CONCLUSION

 The defense seeks a declaration that the RFRA is a nation-wide law and valid here in the 3rd circuit. Just as the U.S. Supreme Court has upheld the use of “Hoasca” for member of the UDV religion, and “Peyote” for native Americans under the protections of the RFRA so should this Court in protecting the Religious rights of Rastafarians who use marijuana.  The use of marijuana in religions predates the Government Religion of Christianity, it is a fact that “marijuana” also known by many names has been religiously accepted by many faiths. Christians just happen not to accept the “good” of marijuana and instead adhere to false superstitions that marijuana is the “devil’s weed” and have made religiously intolerant laws to prevent its use even by non-Christians such as the defendant(s) in this case.

 

Regardless based on the reading of the 9th circuit in Meeks, and Guerrero and the 10th circuit in O Centro Espirita Beneficiente Uniao do Vegetal Vs Ascroft the defendant(s) truely believed the RFRA is a nation-wide law and that our their actions while not condoned by the Government were in fact defensible under the RFRA.  

 

The defendant(s) have clearly been denied numerous basic constitutional protections by the “magistrate Judge” in this matter and it is a matter of public interest to correct this “judicial persecution” other-wise there is no need for this country to criticize the Chinese for their treatment of the Faluan Gong religious sect, the Saudi’s for their treatment of followers of Christianity or expect the Shiites of occupied Iraq to respect the Sunnis. This conviction and probation condition(s) are nothing more than an example of the “persecution” a citizen suffers in this country for his choice in religions by the Christian majority. This is what the founding fathers of this country were trying to prevent with the enactment of the 1st Amendment.

 

                                                                        Respectfully submitted by

Persecuted American,

________________________________

                                                                        Edward Forchion – aka- “NJWEEDMAN

CC- Philadelphia Inquirer, courier Post, Burlington County Times, Times of Trenton, Trentonian, and various internet websites and news organizations.