Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 1 of 27 PageID #: 4352

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1 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 1 of 27 PageID #: 4352 FLORENCE T. NAKAKUNI #2286 United States Attorney District of Hawaii MICHAEL K. KAWAHARA #1460 Assistant U.S. Attorney Room 6-100, Federal Building 300 Ala Moana Blvd. Honolulu, HI Ph: (808) Fax: (808) Mike.Kawahara@usdoj.gov Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII UNITED STATES OF AMERICA, ) CR. NO LEK-01,-02 ) Plaintiff, ) MEMORANDUM, RE: THE UNITED ) STATES ESTABLISHMENT OF ITS vs. ) COMPELLING GOVERNMENT ) INTEREST AND UTILIZATION OF ROGER CUSICK CHRISTIE, (01) ) THE LEAST RESTRICTIVE MEANS SHERRYANNE L. CHRISTIE, (02) ) UNDER THE RELIGIOUS FREEDOM formerly known as ) RESTORATION ACT (RFRA); Sherryanne L. St. Cyr, ) CERTIFICATE OF SERVICE SUSANNE LENORE FRIEND, (03) ) TIMOTHY M. MANN, (04) ) RICHARD BRUCE TURPEN, (05) ) WESLEY MARK SUDBURY, (06) ) DONALD JAMES GIBSON, (07) ) ROLAND GREGORY IGNACIO, (08) ) PERRY EMILIO POLICICCHIO, (09) ) JOHN DEBAPTIST BOUEY, III, (10) ) MICHAEL B. SHAPIRO, (11) ) also known as "Dewey", ) AARON GEORGE ZEEMAN, (12) ) VICTORIA C. FIORE, (13) ) JESSICA R. WALSH, also (14) ) known as "Jessica Hackman, ) ) Defendants. ) )

2 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 2 of 27 PageID #: 4353 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES...i I. THERE IS A COMPELLING GOVERNMENT INTEREST IN ENFORCING THE CONTROLLED SUBSTANCES ACT AGAINST THE CHRISTIE DEFENDANTS...1 II. THE LEAST RESTRICTIVE MEANS HEREIN IS TO ENFORCE THE CSA IN ITS ENTIRETY AGAINST THE CHRISTIE DEFENDANTS...14 III. THE IMPACT, IF ANY, OF UNITED STATES V. MARTINES, 903 F.SUPP.2D 1061 (D. HAWAII 2012), ON THE INSTANT CASE..18 IV. ANY CHANGE IN THE DEPARTMENT OF JUSTICE S PROSECUTION POLICY IS HARDLY RELEVANT TO THE RFRA ISSUES BEFORE THIS COURT...19 V. THERE IS NO REASON TO TREAT S. CHRISTIE ANY DIFFERENTLY FROM R. CHRISTIE IN THE FOREGOING RFRA ANALYSIS...21 VI. CONCLUSION:...23

3 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 3 of 27 PageID #: 4354 TABLE OF AUTHORITIES CASES PAGE(S) Bordenkircher v. Hayes, 434 U.S. 357 (1978):...20 In Re Ellis, 356 F.3d 1198, 1209 (9 th Cir. 2004)...21 United States v. Bauer, 84 F.3d 1549, 1559 (9 th Cir. 1996)...14 United States v. Caceres, 440 U.S. 741 (1979)...20 United States v. Lepp, 2008 WL (N.D. Cal 2008), af fd., 446 Fed.Appx 44 (9th Cir. 2011)...1-3, 19 United States v. Martines, 903 F.Supp.2d 1061 (D. Hawaii 2012)...18, 19 STATUTES AND RULES 21 U.S.C. 841(a)(1)...14 i

4 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 4 of 27 PageID #: 4355 MEMORANDUM, RE: THE UNITED STATES ESTABLISHMENT OF ITS COMPELLING GOVERNMENT INTEREST AND UTILIZATION OF THE LEAST RESTRICTIVE MEANS UNDER THE RELIGIOUS FREEDOM RESTORATION ACT (RFRA) The United States of America, by and through its undersigned counsel, hereby contends that the enforcement of the Controlled Substances Act ( CSA ) against the Christie defendants herein is lawful, notwithstanding that it may constitute a substantial burdening of their arguably religious beliefs, because under the Religious Freedom Restoration Act ( RFRA ), 42 U.S.C. 2000bb-1(b), and given how the Christie defendants have conducted their marijuana trafficking operations through the Ministry, the CSA s application to them is in furtherance of a compelling governmental interest and constitutes the least restrictive means to further that interest. I. THERE IS A COMPELLING GOVERNMENT INTEREST IN ENFORCING THE CONTROLLED SUBSTANCES ACT AGAINST THE CHRISTIE DEFENDANTS. The government interest at issue herein with respect to the Christies is the prevention of marijuana diversion for nonreligious purposes and to non-members/other persons outside of that alleged religious activity. In United States v. Lepp, 2008 WL (N.D. Cal 2008), af fd., 446 Fed.Appx 44 (9 th Cir. 2011), the goal of preventing such marijuana diversion was recognized as a compelling government interest under RFRA

5 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 5 of 27 PageID #: 4356 WL at 9. In prior hearings, this Court has indicated that District Judge Patel s insightful analysis of RFRA in Lepp-- which was subsequently affirmed by the Ninth Circuit-- made it very persuasive authority and precedent, a conclusion with which the United States concurs. District Judge Patel also made two apt observations in Lepp which the United States highlights at this juncture due to their relevance to the instant case: (1) The defendant in Lepp had asserted that there were 2,500 parishioners in his Rastafarian sect who allegedly used marijuana religiously, to which District Judge Patel stated: [defendant] Lepp would then need to demonstrate the sincerity of all 2,500 parishioners in order to allay the court s diversion concerns WL at 11. District Judge Patel s advice is particularly pertinent herein, because according to R. Christie s own Declaration (Docket Document #587-4), paragraph 46, there were about 2,000 3,000 Ministry members residing on the island of Hawaii, of which... the ministry would provide sacrament to approximately 200 to 400 members in a month s time. 1 Moreover, his wife, S. Christie, noted in one intercepted call (TT2, Call #2997, 1 R. Christie also told the undercover officer that people can join the Ministry from anywhere in the world. We have over 62,000 people... 6/24/08 recorded conversation (Docket Document #617-2 at 5). 2

6 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 6 of 27 PageID #: /25/09 [Docket Document #615-1 at 95]) that the Ministry served seventy people a day ; R. Christie himself in another call (TT1, Call #9521, 7/9/09 [Docket Document #614-1 at 104]) said we re only open to serve, um, our people, our practitioners here, Monday, Wednesday, Friday from two to five. So, during this time, we serve about 50 or 70 people and we dispense cannabis, and so yeah, we go through, ah, easily a half pound a day in three hours. (2) Furthermore, in addition to and independent of her first observation, District Judge Patel also noted in Lepp that: [c]oncerns about diversion would still exist, however, even if large quantities of this popular Schedule I drug were all meant for religious purposes. Indeed, there has been no showing here of how Lepp and his congregation would restrict or that they have restricted access to the marijuana to sincere Rastafarians only WL at 13 [emphasis added]. Much of the remainder of this memorandum will echo District Judge Patel s second concern. At the outset, we note that the manner in which the Christie defendants have: (1) defined their alleged religious beliefs vis a vis marijuana, and (2) have operated their Ministry to distribute marijuana, raise significant diversion concerns in and of themselves. We address these concerns in turn below. First, the Christies purported religious experience with 3

7 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 7 of 27 PageID #: 4358 marijuana was all-encompassing to include every possible use and association a person could ever have with this drug. As R. Christie stated in his Declaration (Docket Document #587-4): Holy cannabis sacrament is used by THC Ministry members for prayer, meditation, worship, nutrition, healing and fellowship (paragraph 13), and [t]he budding cannabis flowers, leaves and fully developed seeds are all sacraments. Each one can deliver invisible graces by reducing stress and promoting happiness, gladness, joy and allow optimum health to occur (paragraph 24). S. Christie s alleged religious view was even broader than her husband s, asserting in her Declaration (Docket Document #587-5) that, I inhale twice, and usually within the hour, I have an aha moment. This is direct Divine Intervention (paragraph 19). Second, it was not difficult to become a Ministry member. Most likely, the very secular reason to join the Ministry was as former employee Victoria Fiore so candidly put it in her Declaration (Docket Document #668-1 at 1): I had first become a member of the THC Ministry in order to obtain marijuana. R. Christie indicated in his Declaration (Docket Document #587-4) in paragraph 37 that to become a member of the THC Ministry, or part of a ministry family one must be over 21 years of age[ 2 ] and 2 However, according to the Ministry s website, if you are under 21 years old, you still can join the Ministry if you (1) 4

8 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 8 of 27 PageID #: 4359 must affirm that he/she will use cannabis sincerely as part of his/her religious practice and method of worship [emphasis added]. In other words, consistent with their limitless view of marijuana being sacrament under all circumstances, the Christies similarly made no effort to restrict their Ministry members use of and association with marijuana in any way. Not surprisingly, becoming a Ministry member, either in person or through the mail, was simplicity itself. As recited in both the Walsh and Fiore Declarations (Docket Documents #667-1 at 1-2 and #668-1 at 1-2, respectively), it was only necessary to attend a brief orientation session with R. Christie at the Ministry s business premises, with a hat then being passed around to collect membership donations. However, that was the only true donation ; as both Declarations further indicated, if one wanted to acquire sacrament (marijuana), one had to pay in full. In short, becoming a member in person-- and the concomitant eligibility to purchase sacrament (marijuana)-- just entailed showing up. R. Christie himself admitted as much during an intercepted call (TT1, Call #9521 [Docket Document #614-1 at 105]), wherein he said: and anybody that wants to be a newcomer to the ministry and, and get a spiel about what we re up to and how we got here is welcome to sit in on an live independent of your parents, or (2) have your parent s written permission (Docket Document #613-1 at 3). 5

9 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 9 of 27 PageID #: 4360 orientation.... And, and I get to say my piece about the ministry and answer questions about it. And if people want to join they can, if they don t, that s fine, too. [emphasis added]. Jessica Walsh noted in her Declaration that Roger Christie made the decision about who would become members. However, I was not aware of anyone who was ever turned away from membership (Docket Document #667-1 at 5). Moreover, a personal appearance/affirmation at the Ministry was not necessary to join. If one could pay the full $250 donation price, he/she could become a member in absentia by mail through acquisition of the Ministry s Sanctuary Kit advertised on its website. 3 One of the documents included in the Sanctuary Kit was a certificate of good standing signed by R. Christie (Ex. SK-09 [Docket Document #640-10]; see also para. 13(b) of Walsh Declaration [Docket Document #667-1 at 9]), which certified that the mail-in recipient has accepted the tenents [sic] of The Hawaii Cannabis (THC) Ministry and as of this day is a Minister in good standing. 4 Another benefit of securing 3 As indicated on the Ministry s website, you become a full supporting member of the THC Ministry the moment you receive your Cannabis Sanctuary Kit (Docket Document #613-1 at 4). 4 In an effort to minimize the effect of the Sanctuary Kit on the Ministry s membership rolls, defendants will presumably argue that since off-islanders primarily ordered the Sanctuary Kit, they would not likely be able to acquire marijuana inperson at the Ministry, 6

10 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 10 of 27 PageID #: 4361 membership through the Sanctuary Kit was the opportunity to receive two, blank Ministry membership cards, which the mail-in recipient could do with as he/she wished. T.P.(8/27/2013) at 8-9. Third, notwithstanding that the Ministry s website may have contained some language arguably limiting the use of marijuana (see Docket Document #613-1 at 4-5), such restrictions were never announced at the most important time, that is, when the marijuana was actually being distributed during express service to the Ministry s clientele. As Victoria Fiore stated in her Declaration: When I manned the express desk, I never advised the customers that there were any restrictions on what they could do with the sacrament they had acquired from the Ministry. The customers were not limited to using the sacrament only on the Ministry s premises or for religious purposes only. In addition, I never advised the customers that they were prohibited from distributing the sacrament to other persons and non-members. The only reason I never did this was because neither Roger Christie nor Sher [S. Christie] told me that such restrictions existed. Docket Document #668-1 at 5. However, this was not necessarily so, as Sanctuary Kits were in fact purchased by other big island residents in order to obtain the other Ministry paraphernalia contained therein (as the Sanctuary signs, plant and bag tags, etc). As indicated in the Second Sze and Second Buyten Declarations (Docket Documents #683-1 and #673-2, respectively), co-defendants Shapiro, Ignacio and Policicchio and N.C. maintained at their big island residences Sanctuary signs, Ministry certificates of good standing, and the like. See Sze Exhibits 5 7 (Docket Documents to 683-4) and Buyten Exhibit 1 (Docket Document #673-3). 7

11 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 11 of 27 PageID #: 4362 Jessica Walsh also reiterated this same point in her Declaration. See Docket Document #667-1 at 7. Moreover, the so-called restrictions set forth on the Ministry website were illusory and misleading. The website, for example, stated that the sale of Sacrament is not permitted (Docket Document #613-1 at 5). However, consider what R. Christie thought was not a sale. In his negotiations with the UC officer for a one-half pound marijuana transaction, Christie had remarked: I ve never sold a pound or half a pound to anybody. I don t sell, it s donations, people. [and] But if you want to donate to the Ministry, I got, I got a half a pound for you. Docket Document #617-2 at In a similar vein, R. Christie described the business arrangements he had with Suzanne Friend and Timothy Mann for the Ministry s marijuana farm the latter were operating as follows: they donate it [i.e., the marijuana] to me and then I donate something back to them and hopefully we will keep each other happy. TT1, Call #7575 (6/16/09)(Docket Document # As they continued to haggle over a sales price for the ½ pound, R. Christie at one point noted I ll make nine hundred bucks [profit]. That s a little bit less than I m making if I do it on my own. Can you make a little sweeter than that? (Docket Document #617-2 at 41). 8

12 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 12 of 27 PageID #: 4363 at 68). Fourth, the Christies lack of any restrictions on the use/association with marijuana was not inadvertent. In order to perfect their religious defense to prosecution, the Ministry website urged members to also becom[e] ordained as a minister and being licensed to marry people in your state (Docket Document #613-1 at 6). Being a minister was a very important step; as indicated in R. Christie s Declaration (Docket Document #587-4) at paragraph 36, the THC Ministry calls on its ordained ministers for making and providing cannabis sacrament for those in need. This is a very important part of the THC Mission. [emphasis added] In short, ministers in the Christies world had open-ended licenses to cultivate and distribute marijuana to anyone, members and non-members alike, solely based upon their own self-defined view of need. In this connection, R. Christie also authored an article published on the Ministry website entitled You can be a minister, too, wherein he wrote: It s easy to become an ordained Minister [through the Universal Life Church] and to get licensed by the State of Hawaii to legally marry people. I call it a promotion from God. It s available to all Hawaii residents. * * * There is zero credit or background check involved. Everyone qualifies. 9

13 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 13 of 27 PageID #: 4364 Docket Document #613-1 at The Second Buyten Declaration (Docket Document #673-2 and associated Buyten Exhibits) described the results of two separate HCPD searches of N.C. in 2007 and 2009, wherein it appeared that N.C. was using the Ministry s umbrella of religious dogma to shield his extensive 100+ marijuana plant cultivation and other marijuana trafficking operations. With a State of Hawaii certificate authorizing N.C. to marry persons, a Sanctuary sign, and Ministry bag tags to sanctify his marijuana inventory, see Buyten Ex. 1 11, Docket Documents #673-8 to #678-13, N.C. was arguably fulfilling his ministerial duties, as R. Christie would put it, of making and providing cannabis sacrament for those in need. In short, N.C. was the Ministry s poster child, and his trafficking conduct was the logical conclusion of the sum-total of the Christies alleged religious beliefs vis a vis marijuana. 6 Jessica Walsh explained in her Declaration how, following R. Christie s advice, she quickly and easily became a minister through the Universal Life Church (Docket Document #667-1 at 2-3): Roger Christie said I could be ordained by the Universal Life Church ( ULC ) and provided its website address. I went to the ULC website and downloaded the application form. I then mailed the form to the ULC in Modesto, CA, along with my payment for the required application fee. I then received in the mail my ULC certificate [of ordination]. This is why District Judge Patel characterized the Universal Life Church as a credential mill W.L at 4. 10

14 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 14 of 27 PageID #: 4365 Fifth, the Christies have evinced no real concern about the persons to whom they were distributing the sacrament at the Ministry. As hereinbefore indicated, two blank membership cards were contained in every Sanctuary Kit mailed-out. Even if prospective members joined the Ministry in person, they were given blank membership cards. These membership cards only had a signature line to identify the member (see Ex. SK-11, Docket Document #640-13), and the member was supposed to enter his/her own signature. T.P.(8/27/13) at 10. Not surprisingly, there were occasions during express service where the signatures on the membership cards were not legible; however, this was hardly a bar to obtaining sacrament. T.P.(8/27/13) at As Jessica Walsh testified: Q:... [w]hen you were working on Express, what did the individual have to do to identify themselves to you? A: They would have to show this, their ministry ID card. Q: And what happens if like on this particular card you couldn t make out their signature? Was there any further identification process which was required for you to do of them? A: There was not, no. Q: What was all that they needed-- and if an individual came to you for Express to obtain sacrament, what was all that they needed to do to be eligible to receive sacrament? A: They had to show their ministry ID card, but I wasn t-- I didn t check the signature or read the signature or- Q: Was there any requirement imposed on you to read the signature or to somehow identify who the bearer of that ID 11

15 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 15 of 27 PageID #: 4366 card was? A: There wasn t, no. I wasn t directed to even read it. Q: Were you given any instructions as to confirm their identity by use of- by having them show their license or other formal identification card? A: I wasn t, no. It was a quick glance. Mostly, see the red heart and know that they had a card. 7 Q: Well, what I asked you, was there any requirement imposed on you to check other- other state ID or other licenses to confirm their identity? A: There was no requirement, no. Q: Now, was there any requirement imposed by-- on you to check your membership-- your ministry membership records to make sure that this person who bore this card was a valid member? A: There was no requirement. T.P.(8/27/13) at As Ms. Walsh further indicated in her Declaration: (1) [F]rom that time forward [that is, spring 2009], express procedure became the primary way that marijuana was distributed at the Ministry and why so many customers could be handled in such a short period of time (Docket Document #667-1 at 3-4); 7 There is a red heart and a superimposed marijuana leaf on the left side of the Ministry membership ID card. See Ex. SK-11, Docket Document # Ms. Walsh also indicated that in addition to her position at the express desk, there was a doorman who also checked identification as customers first entered the Ministry. However, as Ms. Walsh testified,... I was the door person a 12

16 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 16 of 27 PageID #: 4367 (2) The vast majority of customers who came to the Ministry did not come to see Roger Christie or Sher. Instead, they came to use the express procedure to obtain their sacrament (marijuana) (Docket Document #667-1 at 8); and (3) The whole idea of express was to merely distribute the marijuana to the customers (and get their payment money) in the most efficient way possible (Docket Document # at 7). Given the benefits of what the express procedure was accomplishing for the Ministry, insuring that only bona fide members were participating was hardly a serious priority or concern for the Christies. This latter point is particularly important because the Christies have heretofore contended a lack of diversion since only Ministry members were eligible to acquire sacrament (marijuana). Even if one puts to one side the speciousness of Ministry membership in the first instance (for the reasons articulated earlier in this memorandum), the manner in which the Christies have structured express procedure so as to make any identification process non-existent undermines the credibility of this argument. The bottom line is that for the reasons set forth earlier, few times and I was not instructed to check anything other than the ministry ID card. T.P.(8/27/13) at

17 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 17 of 27 PageID #: 4368 there are extreme diversion concerns as a result of how the Christies have theorized their alleged religious doctrine to include diversion as part of their beliefs, and the manner in which they have actually conducted their marijuana distribution operation at the Ministry. The United States has a clear and compelling interest in preventing this from occurring. II. THE LEAST RESTRICTIVE MEANS HEREIN IS TO ENFORCE THE CSA IN ITS ENTIRETY AGAINST THE CHRISTIE DEFENDANTS. In United States v. Bauer, 84 F.3d 1549, 1559 (9 th Cir. 1996), the Ninth Circuit recognized that [w]e do not exclude the possibility that the government may show the least restrictive means of preventing the sale and distribution of marijuana is the universal enforcement of the marijuana laws. This observation by the Ninth Circuit is particularly pertinent to the instant case. The core prohibition of the CSA-- particularly embodied in 21 U.S.C. 841(a)(1)-- is proscribing the manufacture and trafficking of controlled substances (as marijuana) for profit. Inasmuch as the Christies were acquiring their marijuana inventory from various co-defendant suppliers 9 at lower wholesale prices, and then marking them up for resale at retail through the Ministry, all of the Christies marijuana- 9 So there is no confusion, the Christies suppliers were also Ministry members. See Second Sze Declaration and attached Sze exhibits (Docket Documents #683-1 to 683-6). 14

18 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 18 of 27 PageID #: 4369 related activities charged in the indictment fall squarely within the CSA s core prohibition. 10 This, by itself, makes it virtually impossible to exempt any part of the Christies distribution activities from the full application of the CSA. It may be superficially appealing to speak of applying the CSA to only substantial marijuana traffickers (as Ministry member N.C. ), while carving out exceptions at lower distribution levels. However, such line-drawing is logically difficult to effect and can as a practical matter adversely affect effective law enforcement at either end of the distribution spectrum for lack of uniform enforcement of the laws, inasmuch as the same fundamental motive is present at all levels: profit-taking. In addition, it cannot be said that the Christie s marijuana distributions were de minimus. From the perspective of the Ministry s clientele, the amount someone may individually purchase might appear to be relatively small. However, in the aggregate, given the number of customers which the Ministry serviced in just a three-hour business day (50 70) and the amount of marijuana transacted (at least ½ pound), the extent of 10 In our original Memorandum in Opposition to defendant s RFRA Motion in Limine (see Docket Document #603 at 101-3, hereinafter Opposition Memorandum ), we extensively documented what it cost the Christies to acquire marijuana from their codefendant suppliers, and what the Christies actually charged as donation prices for resale at the Ministry. We refer this 15

19 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 19 of 27 PageID #: 4370 the Christies Ministry business was indeed significant. Furthermore, inasmuch as the harvest from the Susanne Friend/Tim Mann marijuana farm was supposed to be exclusively for the Ministry, the size of that grow when it was searched in July some 284 growing marijuana plants - gives an idea of the extensive infrastructure that was necessary to support the Ministry s distribution operations at that time. Lastly and most importantly, the same reasons that gave rise to the United States compelling need to prevent diversion, also establish why full enforcement of the CSA against the Christies is also, in effect, the least restrictive means. As hereinbefore indicated, the Christies own dogma permit and require diversion to occur as a matter of course, particularly with respect to their ministers. Consequently, as we have previously contended at greater length in our prior Opposition Memorandum (Docket Document #603 at 120): (i) it did not matter to R. Christie that 400,000 of his Ministry plant tags had been disseminated and potentially could be abused for non-ministry purposes; and (ii) after determining that the Ministry s inventory was full, he also advised two of his suppliers (codefendants Shapiro and Ignacio, who were also Ministry members, see Docket Documents #683-2 and #683-3) to find other purchasers Court to our opposition memorandum for further details about dollar amounts, their profit-taking, and the like. 16

20 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 20 of 27 PageID #: 4371 for their marijuana. In other words, it made no difference to R. Christie that these alternate buyers could be outside of the Ministry in the blackmarket. In their most recent submission, the Christie defendants have repeated their oft-stated contention that R. Christie... operated his Ministry in the open. He engaged in open communication with law enforcement (Docket Document #680 at 8), and then suggested that the [g]overnment could easily have notified Reverend Christie of its concern that the THC Ministry s mode of operation posed a risk of diversion, and Reverent Christie would have willingly worked with the government to address its concerns (Docket Document #680 at 8). This is rather incredulous, because R. Christie only exhibited the public face he wanted others to see while affirmatively hiding other more significant matters that he wished to keep secret. For example, in one telephone call, R. Christie explained his plans for the Ministry marijuana farm (i.e., the Susanne Friend- Timothy Mann cultivation). See TT2, Call #269 (4/17/09)(Docket Document #615-1 at 23). R. Christie was adamant in this call that it s [i.e., the farm] got to be super private (Document #615-1 at 25). In addition, the caller specifically asked, is the county or the law enforcement, is it secret from them..., and R. Christie replied yeah, I don t let them know, although if they do find out, you know, I m, I m, 17

21 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 21 of 27 PageID #: 4372 my name is all over it (Document #615-1 at 26). The bottom line is that it was not a viable law enforcement alternative to alert R. Christie that he was being investigated. The bottom line is that for the same reasons articulated by District Judge Patel in Lepp, the full enforcement of the CSA against the Christies is in fact the least restrictive alternative, and this Court should so rule. III. THE IMPACT, IF ANY, OF UNITED STATES V. MARTINES, 903 F.SUPP.2D 1061 (D. HAWAII 2012), ON THE INSTANT CASE. Application of Martines to the instant case was previously briefed at length, which we will not repeat here. See Motion for Reconsideration/Clarification (Docket Document #660-1). In a nutshell, our position is that should this Court find under RFRA that any substantial burden placed upon the Christies religious beliefs by application of the CSA to them is justified, then Martines would only permit the Christie defendants to raise their religious beliefs at trial to contend that the marijuana at issue was solely for their own personal religious use, and not intended for any distribution purpose. Martines would not authorize the defendants to have a broader defense based upon their beliefs to the charged conspiracy and substantive manufacture/distribution/possession with intent to distribute offenses that the marijuana they acquired from their codefendant suppliers and then sold to their members -- as well 18

22 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 22 of 27 PageID #: 4373 as that cultivated at the Friend/Mann farm and to be similarly distributed through the Ministry-- was for the personal, religious use of said members. Again, the Lepp case is instructive, because after finding that the government had met its burden under RFRA, District Judge Patel did not feel it necessary to permit any personal religious use defense at trial. Presumably, the reason therefor was that the defendant in Lepp had always contended that the marijuana he was cultivating was intended for distribution to others (for example, his fellow Rastafarians), and was not for his own personal use. 11 The same situation is present here. Neither of the Christie defendants is contending that the marijuana at issue herein was for his/her own personal religious use, and query under these circumstances whether such a Martines-based instruction is raised and/or is necessary in this case. IV. ANY CHANGE IN THE DEPARTMENT OF JUSTICE S PROSECUTION POLICY IS HARDLY RELEVANT TO THE RFRA ISSUES BEFORE THIS COURT. In their joint supplemental memorandum filed August 26, 2013 (Docket Document #680), the Christie defendants have attempted to postulate Attorney General Holder s recent comments 11 As District Judge Patel noted in her opinion, 2008 W.L at 12: In order to remain consistent with O Centro, the court notes that its decision does not implicate charges of mere possession against Rastafarians. Specifically, this 19

23 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 23 of 27 PageID #: 4374 as a reason to downgrade the prosecution s compelling interest in uniformly applying the CSA. Notwithstanding those comments, the CSA still remains the law of the land and prosecutions thereunder will still continue. As long as that happens, the United States concern for uniform application of the CSA and to prevent diversion in connection with RFRA remain a valid and paramount concern. To the extent that the Christie defendants are questioning the validity of the mandatory minimum charge asserted herein in the light of Attorney General Holder s comments, we note as follows: (1) Any executive policy, as that announced by Attorney General Holder, does not create or confer any rights, privileges, or benefits upon the defendant in any matter, case, or proceeding. See United States v. Caceres, 440 U.S. 741 (1979); and (2) As the Supreme Court noted in Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978): In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature s constitutionally valid definition of chargeable offense, the conscious exercise of some opinion does not implicate prosecution of marijuana that is for purely personal use. 20

24 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 24 of 27 PageID #: 4375 selectivity in enforcement is not in itself a federal constitutional violation so long as the selection was (not) deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Accord, In Re Ellis, 356 F.3d 1198, 1209 (9 th Cir. 2004)(prosecution decision to charge is an executive choice). V. THERE IS NO REASON TO TREAT S. CHRISTIE ANY DIFFERENTLY FROM R. CHRISTIE IN THE FOREGOING RFRA ANALYSIS. In their most recent filing, the Christie defendants have contended that it is wholly unnecessary for the government to employ any means against Sherryanne Christie because targeting Roger Christie alone would have been more than sufficient to address any diversion concerns (Docket Document #680 at 7). This contention is without merit. Both Christies worked in tandem in a joint effort for the Ministry to succeed (this was why a conspiracy was charged). Moreover, S. Christie was hardly just a follower. During R. Christie s convalescence due to his broken ankle, S. Christie took over supervision of the Ministry, and the express service was operated under her auspices As Jessica Walsh indicated in her Declaration (Docket Document #667-1 at 4 and 6-7: 8. There was always a morning meeting of the employees before the Ministry opened for business. This meeting was led by Roger Christie (or by Sher when she was in charge of the Ministry in about mid-2009, when Roger Christie had to stay home because he broke his ankle). At these meetings, Roger Christie or Sher would tell us what kinds of sacrament (marijuana) were available for distribution that 21

25 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 25 of 27 PageID #: 4376 Moreover, even prior to R. Christie s medical condition, S. Christie exercised a supervisory role at the Ministry. It was S. Christie, for example, who instructed former employee Victoria Fiore that there should not be any numbers with dollar signs written down at the Ministry, and when queried by Fiore what do we tell people then that are asking how much the something costs, S. Christie responded that you memorize it. TT2, Call #255, 4/16/09 (Docket Document #615-1 at 13). In short, S. Christie s culpability falls in the same range as R. Christie s and there is no good reason to differentiate her from him. // day and how much the donation for this sacrament would be. * * * 11(A).... [During the express procedure], [t]he customer would then tell me how much he/she wanted and give me his/her full cash payment (partial payments were not acceptable). I would write down the amount of his/her order and place that along with the customer s cash payment and ID card in an envelope. 11(B). I would then take this envelope back to Roger Christie s office, where either he or Sher (when she was in charge) was present. I would wait in the office as they checked the order and counted the money; they would then take out the ordered amount of marijuana from the cooler... and hand it to me. I would then take this sacrament back to the customer (who was waiting up front) and give it to him/her along with the ID card. The customer would usually immediately leave after receiving his/her sacrament. 22

26 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 26 of 27 PageID #: 4377 VI. CONCLUSION: For the reasons set forth herein, the United States asks this Court to find for the government, consistent with the instant memorandum. DATED: Honolulu, Hawaii, September 4, FLORENCE T. NAKAKUNI United States Attorney /s/ Michael K. Kawahara By MICHAEL K. KAWAHARA Assistant U.S. Attorney 23

27 Case 1:10-cr LEK Document 696 Filed 09/04/13 Page 27 of 27 PageID #: 4378 CERTIFICATE OF SERVICE I hereby certify that, on the dates and by the methods of service noted below, a true and correct copy of the foregoing was served on the following at their last known addresses: Served Electronically through CM/ECF: THOMAS M. OTAKE, ESQ. Attorney for Defendant ROGER CUSICK CHRISTIE thomas@otakelaw.com LYNN E. PANAGAKOS, ESQ. Attorney for Defendant SHERRYANNE L. CHRISTIE lynnpanagakos@yahoo.com DATED: September 4, 2013, at Honolulu, Hawaii /s/ Valerie Domingo U.S. Attorney's Office District of Hawaii