EDWARD FORCHION

P.O. Box-1302

Browns Mills, N.J. 08015 

 

U.S. District Court

 U.S. Courthouse

600 Market Street

Philadelphia, Pa 19101

  

Edward Forchion                                              :                   REPLY BRIEF

                        (Defendant)                               :                          

              Vs                                                        :

U.S. Park Police, et al                                       :               

                        (Plaintiff)                                   :            Case No.- _04-949-M

 

            The U.S. Government admits that under limited circumstances the RFRA does create an AFFIRMATIVE DEFENSE for the religious use of marijuana in religious ceremonies but never spells out when or where these circumstances are RIPE. We believe in reading UNITED STATES Vs BAUER, 84 F.3d 1549 (9th Cir. 1996), CITY of BOERNE Vs FLORES, 521 U.S. 507, 532 (1997), and most importantly GUAM Vs GUERRERO, 290 F.3d 1210 (9th Cir 2002) we have identified the circumstances and have acted on them and have now rightfully presented our claims to the Federal Courts after we were issued summons. Our “RIGHTEOUS GOAL” was to publicize when and where the “religious use of marijuana” is legal within federal jurisdictions.

 

In reply to the governments response brief in opposition to our appeal-brief, the government’s arguments are dis-ingenuous. The most glaring first. The Government takes a stand that the Judge in the trial Judge Rapport did not reject the applicability of the RFRA in the 3rd circuit but simply found that the 3rd circuit had not adopted a criminal standard; is absurd. The Courts own reading of the transcripts will clearly show what occurred.

US ATTORNEY Brief page 10-11: “Defendants misconstrue Judge Rapport’s statements; he was simply noting that the Third Circuit had not considered the issue of when an affirmative defense to a criminal prosecution exists under the RFRA. In fact, Judge Rapport recognized the applicability of the RFRA and carefully and toughly considered the evidence offered and the legal arguments made by the defendants, and only then determined that they failed to establish and affirmative defense to the charges.”

 

As to the argument raised by the Government, it is clear the Government did not even bother to research this argument before presenting it; in response to our claims. Had the Government researched this argument it would have found the case of Black hawk v. Game commission No(s). 02-3947-4158 which we cite in our MEMORANDUM of Dec 13th, 2004. The Court specifically ordered the Government to respond to this “memorandum” in its Dec, 14th 2004 order:

 

(c)    Because we must now consider the merits of his amended motion for illegal sentence (docket entry#2) and the memorandum that he submitted to supplement that motion (docket entry#5)(*2), we shall also order the Government to respond to those filings;

 

4. By December 29, 2004, the Government shall RESPOND to defendant’s motion for stay of illegal sentence (docket entry #2) and the memorandum that he submitted to supplement that motion (docket entry#5);

 

      The Government has failed to respond to this Memorandum and appears to have forfeited its opportunity and further complicates the matter by arguing in its brief that the 3rd circuit has not adopted a criminal standard when the Black Hawk decision clearly says otherwise.

 

      Secondly the Court should find it amusing that at the 11/12/04 TR Transcript, page 9 line 22-24. The U.S. Attorney says this:

 

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

 

And now in her response brief say’s this:

            “In fact, Judge Rapport recognized the applicability of the RFRA and carefully and toughly considered the evidence offered and the legal arguments made by the defendants, and only then determined that they failed to establish and affirmative defense to the charges.”

 

TR TRANSCRIPT NOV 10th, 2004 Page 84 lines 10-18

 

                        FORCHION: “The Government itself in its brief wrote in limited circumstances it is, there is a defense and that’s what I’m saying. We are specifically put ourself in those limited circumstances which the government acknowledges exist. The government’s acknowledging that this does exist, that there is a defense for the use of marijuana on federal on property under circumstances”.

                   THE COURT: “Do you understand that’s not the law in this circuit.”

 

            Magistrate Judge Rapport like U.S. Attorney Hayes must not have been aware of the Black-hawk decision when he rejected our arguement that the RFRA provided a “AFFIRMATIVE DEFENSE” to the criminal charges we were facing. Again, we believe the Black-Hawk decision makes JUDGE RAPPORTS position/argument/ruling “MOOT”. The 3rd Circuit has addressed this issue and has rendered a completely different ruling than Judge Rapport ruled or the U.S. Attorney attempts to “construe” as Judge Rapports interpretations. In error Judge Rapport rejected our affirmative defense.

 

            Thirdly, the defendants weren’t given a “FAIR” trial in regards to Judge Rapport’s decision to rule on the “RELIGIOUS ASPECTS” of this “FREE EXERCISE” case without the benefit of EXPERT RELIGIOUS testimony.

 

           The U.S. Attorney say’s: “HOWEVER, the defendants cannot establish that the court committed plain error when if found that the defendants were engaged in a religious ceremony when they smoked marijuana in the course of the protest.”

 

            We hope the DISTRICT COURT directly address’s this claim in its decision and hopefully grants a evidentiary hearing so “we” may expose the magistrate courts plain error (Motion to be filed separately) The Attorney who appeared on our behalf Micheal Coard, esq even attempted to present literature, “BOOKs” to no avail. Apparently Judge rapport accepting the Prosecutions testimony gleaned claim that “No-where is it written in your religion that you’re required to hold what you call a religious ceremony and smoke marijuana in Independence National Historical Park?” Like that was required.

 

                               TR TRANSCRIPT Nov. 10, 2004 page 54 lines 11-17

           Mr. COARD: The requirement thing is not the issue and your honor asked a couple times are there any books, any authorities, on this and I’m telling the Court that there are at least two books labeled as encyclopedias that I would make available to the Court before the Court renders a decision.”

 

            The Judge declined to accept this literature or obtain EXPERT TESTIMONY and made this speedy decision without ever giving our RELIGIOUS claims serious consideration. Which we alleged in brief and at trial, to be a serious egregious violation of our ability to present our “Free Exercise Claim”.

 

TR TRANSCIPT NOV 10th, 2004 page 7 lines 2-25

            MR FORCHION: “…I believe the Judge, your Honor, made a error in determining himself what he was witnessing on the video that we showed.

            The Court determined that what he was witnessing was not a religious demonstration. I believe if an expert witness, a religious expert had evaluated what occurred that he may have come to a different determination, so I believe that should be a issue for the record.”

Fourthly, (UNEQUAL PUNISHMENT CLAIM ) the government fails to address the issue raised by defendants in regards to “14th Amendment” violation of equal protection under the law where I defendant FORCHION is given two 6 month sentence to be served “consecutive’ while defendant Duff is given two 6 months sentences to be run “concurrent”. We have similar felony records but this wasn’t even considered by the magistrate court. The magistrate court refused to answer why the different sentence(s) when questioned at trial. Why am I given 6 months more? Because the Judge dis-liked the FACT this NIGGER speaks for himself. At one point the Judge claimed I was dis-respectful. To many a black-man vocally rejecting a whitemans statements are “dis-respect” in the past I may have been lynched for such a show of independence. The Government only mentions that we were both given 12 months probation and side-steps the “concurrent-consecutive” 6 month jail term difference. It is seriously hoped by the DEFENDANT(s) that the DISTRICT COURT address this violation claim.

And lastly, (FREE EXERCISE CLAIM) the defendants in this case have clearly shown the court that this prosecution, conviction and probation conditions do in fact “burden our right to free exercise of our religion”. The Defense maintains they have by a preponderance of the evidence, successfully presented the 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.” We believe we established thru testimony this test but again Judge Rapport rejected this without any expert religious testimony.

(1)   – Our sacrament “marijuana” was seized, tested and not returned.

(2)   Our “religious” ceremony stopped.

(3)    – We were detained, and photographed.

(4)    – Convicted of several criminal offenses and placed on federal probation for 1 year.

(5)    – The conditions of probation invite the Government to imprison “us” when it is discovered thru mandatory “URINE TESTING” that we have resumed our “RELIGIOUS PRACTICES”.

(6)    The conditions of probation stop the “free exercise of our religion” in private under threat of imprisonment. The defendants are forced to dis-continue one of the basic main tenets of the faith. The consumption of marijuana; the sacrament of the religion.

(7)   Court ordered Drug counseling, education and drug programs equal Christian “religious” indoctrination to these defendants.

(8)   The terms of probation will render our religious services at our own “HOUSE OF WORSHIP” illegal. I would be put in jail for 1 year for holding a religious ceremony at my house/house of worship – 1020 Hanover Blvd., Browns Mills N.J. 08015

 

 

Similarities of the instant case with the UVD Case

The Government say’s: “…the government conceded that the religious organization had established a prima facie case under RFRA, and then litigated whether it had a compelling interest in prohibiting Hoasca under the Controlled Substance Act. The defendants cannot avail themselves of the governments concession because it occurred in a factual situation which involved another drug and the private practice of religion, not a factual situation involving efforts to allegedly practice religion publicly within a national park” …. “ A central point about the O Centro case, and one not acknowledged by the defendants, is that it exemplifies how free exercise cases should be litigated because there the members of the church sought an injunction to enjoin the government from enforcing the Controlled Substance Act, a vastly preferable way to proceed than the one chosen by the defendants where they proceeded to break the law and then sought a determination that their conduct was lawful under the RFRA.” … “Defendants also chose to break the law in INDEPENDENCE NATIONAL HISTORICAL PARK without recognizing that a national park is a unique place and a different forum than a public street. A national park is a space reserved for the PUBLIC at the public expense for a special purpose. Independence National park, if not the most important, is one of the most important national parks because it displays the history of the creation of American Government. Millions of vistors come to Philadelphia from all over the world every year to view that history and defendants wholly ignored the impact on those visitors on the three saturadays wwhen they chose Independence National park as a public place to use marijuana.”

This is absurd. First the less than 5000 members of the UDV church were importing “Hoasca” illegal no differently than millions of people who import marijuana: illegally. Once they were caught and their Hoasca seized by the DEA did they then proceed to ask for a Federal injunction which they ultimately won. The U.S. Attorney “blatantly” lies by omission there. Secondly, we presented a “real ceremony” at INDEPENDENCE NATIONAL PARK because of the rulings in BAUER, GUERRERO and FLORES Vs CITY OF BOERNE that ruled the RFRA was only applicable on federal property. We obviously know the Park’s significance or we wouldn’t have done it there. We picked the most highly visible symbol of “FREEDOM in AMERICA” for this case on purpose. We briefly considered taking a WHITE-HOUSE tour and praying (smoking) in the middle of it but nixed the idea because of the logistics of traveling to and fro federal Court in D.C.. We did not desecrate the park, and it was the Park Police that created the disturbance by stopping our ceremony and arresting us. No citizen filed a complaint and several joined in! A review of the film will reveal people cheering our actions!

 Our actions were consistent with other notable “historic civil rights actions’. Example(s): Dr. Martin Luther King, Jr. didn’t demonstrate his right to equality by eating dinner at a black owned diner, no he went to white owned establishments where it was illegal and held sit ins and was arrested as a result. He didn’t boycott black buses; he organized boycotts of the white owned bus company to force change. But more on point in this Case is that of the QUAKER; William Penn who was ordered not to preach his illegal “QUAKER RELIGION”. William Penn instead held a public QUAKER religious ceremony in the town square where he was arrested and challenged the law in court. These were real actions purposely designed to present court challenges to the law; you can’t present a hypothetical to court. You must be arrested, or at least issued a summons. We proudly emulated the actions of WILLIAM PENN in that we went to a public square; INDEPENDENCE NATIONAL PARK where the Liberty Bell itself is a symbol of freedom and attempted to exercise “FREEDOM of RELIGION” in its shadow. You see your honor our religion “RASTAFARI” is as illegal today as William Penn’s QUAKER religion was in England in 1670 and I suspect this case will be noted in future history books.  (I ask the court to see: http://www.drugwar.com/forchionstarchamber.shtm )

THE U.S. ATTORNEY SAYS: “The court found that the defendants sincerely believed that marijuana should be legalized and that the federal narcotics laws are racist, and were exercising free speech while protesting with groups of 25 to 30 other people. However, the defendants cannot establish that the court committed plain error when it found that the defendants were not engaged in a religious ceremony when they smoked marijuana in the course of the protest.” We believe we did establish our case but in error the Magistrate Judge who admitanttly didn’t know anything about “RASTAFARI” rejected it as religious. The magistrate court and the U.S. Attorney consistent describe our actions as a protest instead of what they were a “DEMONSTRATION”.

WE SAY: The U.S. Drug Laws are religiously intolerant and racist. Only the sacrament of Christians (wine) is legal in this country, recently native American have won the right to use their sacrament PEYOTE and more recently the UDV Church from New Mexico (O Centro Espirita Benificiente Uniao Do Vegetal) have won it’s right to use a tea known a s HOASCA as it’s sacrament.. While thousands of “HERB” users are imprisoned or have their lives ruined by the Government when it discovers the person use’s this non-Christian acceptable sacrament. So, yes these proceeding were “purposely-created” by us to bring exposure and publicity to these glaring violation(s) of basic human rights and constitutional rights. “Created” doesn’t mean “FAKE”. So far we have had limited success at this, several newspapers and internet sites have reported on our actions. And 20 to 50 people showed up to watch. The question I wished to address with these actions is; “Do African based Religions have the same religious protections as religions endorsed by white America? So far I’ve found it not to be so. I have found that in America we have “FREEDOM of RELIGIONS acceptable to our white Christian majority”! I’ve been imprisoned just for talking about my beliefs. The U.S. Attorney through these proceedings has made numerous efforts to bring to the courts attention that we believe the DRUG LAWS are RACIST. It appears to “us” that she is offended or can’t accept that she is an “overseer” of institutional racism. For it is a fact that the genises our current “DRUG LAWS” were RACISM. The HARRISON ACT, MARIJUANA TAXATION ACT of 1937, The CONTROLLED SUBSTANCE ACT of 1970 and numerous other were all simply JIM CROW legislation to prevent minorities from using and distributing “substances” not controlled by whites. The original OPIUM laws in this country didn’t even make opium illegal it just made it illegal from Chinese people to sell it. This is also why tobacco and alcohol the most dangerous and addictive substances used in America are legal, while “safe substances” like marijuana are deemed dangerous and made illegal by the CONTROLLED SUBSTANCE ACT of 1970. White(s) as a society have accepted the dangers of Tobacco and Alcohol as part of their culture(s) and keep these substance legal no matter how many millions are killed by these substances world-wide every year. (FACT: The American Tobacco Cartel’s products kill far more humans than the “DRUG CARTELS” of South America. See: ATTACHMENT – NEW ENGLAND JOURNAL) FACT: "Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care." Ruling of Drug Enforcement Administration Administrative Law Judge Francis L. Young, "In the Matter of Marijuana Rescheduling," See Marijuana, Medicine & The Law, Volume II, R.C. Randall, ed., (Galen Press: Washington, D.C.), 1989, p. 440.  .  It is no mistake that our prisons are filled with minorities; it was the purpose of these legislative acts. These ACTS specifically targeted minorities, minority communities, cultures and substances used by minorities, the resulting dis-approportionate prison incarceration rates are the intended results. I go into this a little more at: http://www.njweedman.com/AMERIKKKA.htm - For publicly voicing these facts and standing up to WHITE OPPRESSION via the RACIST DRUG LAWS of this nation I’ve become an ENEMY of the STATE thus my imprisonments for speaking out.

 

 

 I am not the only one who holds these views, in 2002 when I was imprisoned for speaking out against these “RACIST LAWS” the Federal Judge who heard and ultimately granted my “WRIT OF HABEAS CORPUS” FORCHION Vs ISP - Judge IRENAS said this as reported by Linn Washington of the “PHILADELPHIA TRIBUNE”:

(Camden N.J. (1/3/03)) -U.S. District Court Judge Joseph E. Irenas revealed a startling fact in his Camden courtroom on New Year's Eve that most champions of America's War on Drugs want to keep secret: many federal judges favor a drastic overhaul of the nation's ineffective and often discriminatory anti-drug laws.  During a hearing Tuesday on a drug law related case, Irenas stated he was surprised to discover the number of conservative federal judges opposed to current drug laws.  "I attended a judicial conference out West a few years ago and most of the judges there were wearing cowboy hats, cowboy boots and string ties.  Most of these judges were appointed by President Reagan and were very conservative," Irenas noted, "But to a person, everyone said drug laws need to be changed."

                 While making comments questioning the current drug laws, Irenas noted that when President Bush appointed him to the federal bench in 1992 there were 32,000 people in federal prisons. "Today, there are 132,000 in federal prisons and 60% of this increase is for drug convictions. African-Americans comprise a majority of the drug offenders in federal prisons," Irenas stated.  "America has more persons in prison today than South Africa at the height of apartheid and Russia during the height of communism under Stalin," Irenas said, also listing a number of political leaders who advocate changes in drug laws.   
Criticism of drug laws by federal judges is well known in legal circles and widely posted online yet is rarely publicized on network television and in mainstream media sources accessed by the majority of the American public. 

  A number of federal judges, liberals and conservatives, have resigned from their lifetime appointments instead of imposing long mandatory sentences required by drug laws.  Many judges feel mandatory-minimum drug laws are unfair because they generally strip jurists of their authority to craft sentences to match a defendant's actual criminal culpability. Laws mandate judges to sentence drug users and low-level dealers to long sentences while freeing major drug dealers who cut deals with prosecutors.  Judges have criticized current drug laws as expensive, largely ineffective, and damaging to American civil liberties.

  "These unwise sentencing policies which put men and women into prisons for years, not only ruin lives of prisoners and often their family members, but also drains the American taxpayers of funds which can be measured in the billions of dollars," said Chief Judge of the federal 8th Circuit Court of Appeals Myron Bright.  However, 8th Circuit Judge Diana Murphy, chair of the U.S. Sentencing Commission, claims that the judges critical of mandatory laws are mainly "senior judges who have never reconciled themselves to change." (Senior judges are retired judges who still hear cases.)

   Federal Judge Joseph Irenas made his comments about drug laws during a hearing on a matter involving Robert Edward Forchion, the self-styled “New Jersey Weedman.”  Forchion is suing New Jersey authorities, charging them with violating his First Amendment rights when they removed him from a special parole program in August 2002 and returned him to prison.  New Jersey parole authorities claim Forchion violated terms of his release largely by peacefully protesting against a judge depriving him of visiting his daughter due to Forchion's advocacy for reforming marijuana laws and for making an anti-marijuana law commercial that never aired. Forchion contends that the written terms of his parole did not specifically prohibit his marijuana law reform advocacy.  Judge Irenas stated that Forchion has complied with the terms of his parole requiring employment and he has repeatedly passed his twice-weekly urine tests showing he is not using marijuana. 

  "The truth is [Forchion] is not a menace to society. He is a right to participate in First Amendment dialogue," Irenas said, noting that evidence indicates the "New Jersey Department of Corrections is wizzed-off because of his advocacy.” Irenas scheduled a Jan. 21 "show cause" hearing where New Jersey authorities must present evidence to show they did not remove Forchion from parole primarily for his constitutionally protected drug law reform advocacy.   This federal court hearing is four days after Forchion will find out whether he will be readmitted to the Intensive Supervised Parole program when he appears before a three-judge ISP panel.   This Jan. 17 ISP panel hearing date is a continuation of a twice delayed hearing initially scheduled for Sept 2002. 

  Forchion remains incarcerated at the Burlington County jail on under the disputed parole violation.   Forchion plead guilty in Sept 2000 for his involvement in a 1997 scheme to help his brother pick up 40 pounds of marijuana shipped to New Jersey from Arizona. He thought the guilty plea included a deal for immediate ISP release but prosecutors contended no deal existed and Forchion served 18-months in prison before receiving ISP parole.   

Renowned legal scholar Richard Posner, the chief Judge of the 7th Circuit Appeals Court, has voiced his support for the legalization of marijuana."Prison terms in America have become appallingly long," Judge Posner said, "especially for conduct that, arguably should not be criminal at all."

Linn Washington is an award-winning journalist and professor of journalism at Temple University.

 

 

INCONCLUSION

 

 THE 3rd Circuit has adopted the RFRA as a defense for criminal prosecution. RE: Black hawk v.  Game commission

 

The Government response brief totally ignores the District Court case presided over by Judge Surrick and the “precedential” 3rd circuit criminal case ruling of Black hawk v. Game commission No(s). 02-3947-4158. In this case the three Judge panel from the third circuit upheld Judge Surricks decision in favor of a Native American Dennis Black Hawk who had religious beliefs (dreams) that lead him to believe in keeping black bears for ceremonial purposes; Black Hawk invoked the RFRA of 1993 as a defense to criminal charges filed against him by the Penn Game Commission. In that case, the government enforced a series of permits that Black hawk eventually could not pay due to financial hardships.  Black Hawk refused to pay for a permit and was issued a criminal summons upon which he then invoked the RFRA as a defense to these criminal charges. The court found in this case that there were special exemptions as it pertained to the circus or zoo for non-payment of fees for holding wildlife, and it would be only right to create a religious exemption for Black hawk’s beliefs.  This exemption, “defense” was based on the 1993 Freedom of Religion and Restoration Act (42 U.S.C. §2000bb (a) signed into law by Bill Clinton. The 3rd circuit court sided with the district courts decision saying “After considering all of the arguments raised in the appeal and cross-appeal, we affirm the judgment of the District Court in all respects.” This decision renders the heart of the government appeal wrong in this case.

We believe had an expert witness, a religious expert evaluated the video present to the MAGISTRATE of what occurred on Dec. 20th, 2003 March 18th, 2004 and April 20th, 2004 that he may have come to a different determination than Judge Rapport who reject our actions as RELIGIOUSLY inspired. An expert would have also considered the tenets of our faith. We believe again the U.S. Constitution provides for religious freedom, and the RFRA provides a defense for our “religiously inspired actions”. What a conviction in this Court case would determine if that is so or if U.S. drug policy laws are more important than the First Amendment. A conviction would prove there is no actual freedom of religion, it would say what we actually have here in this country is “freedom of religion for practices and beliefs acceptable by our white Christian majority”, and obviously the use of marijuana is not acceptable to our Christian majority so it remains illegal. Therefore incidents like this case, and my previous imprisonments for my genuine beliefs are acceptable because legally Christians have written laws that render my beliefs illegal just as in the past they rendered QUAKER beliefs illegal. If this conviction were allowed to stand I can only say that there's no doubt in my mind that eventually I'll be going back to jail for, again, practicing my beliefs or speaking out against Christian inspired beliefs that have been turned into our nations DRUG LAWS..

Your honor I beg the DISTRICT COURT must render a decision stating if my interpretation of the Bauer, Guererro and CITY of BOERNE Case(s) were accurate or if the Government was correct.

 

 

                                                RESPECTFULLY SUBMITTED BY,

                                                _____________________________________

                                                EDWARD “NJWEEDMAN” FORCHION                               

                                                RELIGIOUS PERSECUTED AMERICAN