APPEAL DOCKET NO.: 04-949-M (A)
UNITED STATES, AMENDED APPEAL-BRIEF
Plaintiff, CONVICTION & SENTENCE
EDWARD R. FORCHION,
Hon. Ronald Rapoport, U.S.C.
ON BEHALF OF DEFENDANT
Legally Known As:
Browns Mills, N.J.08015
Edward Forchion, Pro Se THE DEFENDANT IS NOT CONFINED
TABLE OF CONTENTS
TABLE OF CONTENTS ....................... 2
TABLE OF AUTHORITIES .................... 3
PRELIMINARY STATEMENT.................. 4
SUMMARY OF CASE ....................... 6
FACTS ................................. 9
LEGAL ARGUMENTS .................... 10
THE MOST SERIOUS ERROR COMMITTED BY THE
(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
(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
City of Boerne v. Flores, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)
Kerr Vs Farrey, 95 F.3d 472,
FORCHION v ISP,STATE OF NEW JERSEY, 240 F.Supp.2d 302.
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),
Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001
I Edward Forchion the defendant in this case now moves to appeal the conviction
and sentence handed down by the magistrate court on
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
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
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."
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-
is as illegal a religion in
SUMMARY OF CASE
U.S. Constitution’s 1st amendment was ratified on
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)
2000 I myself was imprisoned similarly to MEEKS in the State of
I re-nigged on this promise and did once again voice my opinions and beliefs; I
was arrested on
Dec. 3rd, 2003 I was released from
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
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).
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..
(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.
– The religion of Rastafari is as illegal in
Colonists who signed the declaration of
THE MOST SERIOUS ERROR COMMITTED BY THE
On numereous occasions during the trial the Court claimed the RFRA wasn’t a nation-wide Act. The defense points to:
The Court: “its not the law here”.
The Court : “its not legal here”.
The Court: “Its not the law here”.
Ms Hayes: “I think you honor followed the law in correctly ruling the Religious Freedom and Restoration Act did not apply”.
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
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”.
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
sentence handed down on
*RASTAFARIANISM: Is a religion which first took root in
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
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
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.
- (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 “
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.
(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
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.
kind of message does this order send? That
7 – violation of the equal protection clause of the 14th Amendments
All persons born or naturalized in
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.
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.”
Employment Division v. Smith,
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
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.”
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.
in People of Guam v. Guerrero, 290 F.3d
1210 (9th Cir. 2002) (decided on
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.
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 (
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 (
After a two-week hearing,
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);
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
The Government moved for
an emergency stay of the preliminary injunction pending appeal. On
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
Edward Forchion – aka- “NJWEEDMAN
CC- Philadelphia Inquirer, courier Post, Burlington County Times, Times of Trenton, Trentonian, and various internet websites and news organizations.