Edward Forchion : REPLY BRIEF
U.S. Park Police, et al :
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.”
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
(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;
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
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.”
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.
the defendants weren’t given a “FAIR” trial in regards to Judge Rapport’s decision
to rule on the “RELIGIOUS ASPECTS” of this “
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
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”.
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
And lastly, (
(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.
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 –
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.
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
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;
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
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. "
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
"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
remains incarcerated at the
legal scholar Richard Posner, the chief Judge of the 7th Circuit Appeals
Court, has voiced his support for the legalization of marijuana."Prison
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
Your honor I
beg the DISTRICT COURT must render a decision stating if my interpretation of
the Bauer, Guererro and
RESPECTFULLY SUBMITTED BY,
EDWARD “NJWEEDMAN” FORCHION
RELIGIOUS PERSECUTED AMERICAN