Our final brief PRAYERS FOR Relief

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The Attorney General himself just detailed what their “compelling interests” are concerning marijuana – and we are NOT one of them! Our lawyers DID use that very argument, among others, in our final brief which should be available online at www.The-Last-Marijuana-Trial.com any time now.

We were prepared to offer our ‘closing argument’ on August 27th at the evidentiary hearing. ‘Something’ told our lawyers to ask for a one week delay so they could put their final thoughts in writing for the Court. TWO DAYS LATER Attorney General Eric Holder came out with his definitive list of the government’s “compelling interests” concerning marijuana to help make the point CRYSTAL CLEAR that they had none in our case. Co-incidence? Miracle? Divine intervention?

God, that’s GREAT!

All the very best to everyone!

Love, Roger

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Aloha. We give thanks in advance that this final brief is just what’s necessary for Judge Kobayasi to make a ruling FOR Share and me on our Religious Freedom Restoration Act motion for the dismissal of all our charges. God-willing, so it shall be.

All the best to you,

Roger

Below and in subsequent emails is the post hearing brief being submitted to Judge Kobayashi this afternoon.

Defendants Reverend Roger Christie and Sherryanne Christie, by and through undersigned counsel, hereby submit their joint post hearing brief following this Court s August 27, 2013 evidentiary hearing on their RFRA motion.
The Christies have asserted that cultivating cannabis and distributing it to THC Ministry members and medical marijuana patients constitute sincere exercises of their religion, and that this prosecution substantially burdens these sincere religious exercises. The Christies have supported their assertions with documentary exhibits and sworn Declarations from themselves and others, including two declarations from expert witness Laurie Cozad, Ph.D.
This Court has found that the Christies have met their RFRA burden of establishing that the instant prosecution for conspiring, manufacturing, and possessing with intent to distribute marijuana, and maintaining the THC Ministry premises for these purposes, constitutes a substantial burden on their sincere exercise of religion.
Accordingly, this Court has further found that the burden has shifted to the government to demonstrate, as to each defendant, that this prosecution furthers a compelling government interest and is the least restrictive means of doing so. In order to make this demonstration, the government must satisfy both the burden of production and the burden of persuasion.
The government has asserted one interest: preventing diversion of the THC Ministry s cannabis to non-religious use. As explained below and in the Christies reply memorandum (Doc.637-3, pp.11-20) and supplemental memorandum (Doc. 680) , the government has not demonstrated that its diversion interest is compelling in this case, or that this prosecution is the least restrictive means to further that interest.
I. LACK OF COMPELLING GOVERNMENT INTEREST
This Court found that the government s memorandum in opposition, which includes THC Ministry website excerpts and voluminous transcripts of recorded conversations (Docs. 613-617), was not sufficient to satisfy its burden of persuasion. (07/31/13 RT 21).
Since that ruling, the government has produced: (1) photographs of, and Declarations of Edwin Buyten and Clement Sze concerning, cannabis seized from individuals other than Roger and Sherryanne Christie bearing what appears to be THC Ministry tags and signs; and (2) declarations from cooperating witnesses Jessica Walsh and Victoria Fiore, both of whom worked at the THC Ministry.
Concerning the THC Ministry bags and signs, the government has not even alleged, much less produced any evidence, that the cannabis in these photographs and investigations came from the THC Ministry. Accordingly, as explained in the Christies reply memorandum (Doc. 637-3, p.13), the government has not demonstrated that the tags and signs raise any concerns about diversion of THC Ministry cannabis to non-religious use.
Reverend Christie founded the THC Ministry in September 2000. (Christie Dec., Doc. 487-4, p.4..) Jessica Walsh worked at the Ministry from January 2009 through March 2010. Victoria Fiore worked at the Ministry from April through June 2009. Their testimony was limited to this time period. The wiretap evidence in this case is likewise limited to the period April through July 2009. The Fiore and Walsh Declarations discuss: (1) the THC Ministry sanctuary kits; and (2) the express procedure. As explained below, neither the sanctuary kits nor the express procedure give rise to a compelling government interest.
A. The Sanctuary Kits
The THC Ministry Sanctuary Kits were largely informational packets. (08/27/13 RT 33.) Included in these sanctuary kits was holy anointing oil, which consisted largely of olive oil and some essential oils, and a very small amount of cannabis. (Id. at 30-31) The purpose of the oil was religious and symbolic. (Id. at 32.) It was a replication of the holy anointing oil referenced in the Bible. (Id. at 73.) It was used for prayer, blessing, anointing, and healing. (Id. at 33, 73.) It was not smoked or vaporized. It was not in a form that one could use to get high. (Id. at 31.) The cannabis in this quantity and form does not raise diversion concerns.
Also included in the sanctuary kits were membership cards, with blank signature lines. The sanctuary kits were primarily mailed to people on the mainland and islands other than the island of Hawaii. (08/27/13 RT 29, 72.) With rare exception, the people who acquired cannabis from the THC Ministry were from Hilo, and were not recipients of the sanctuary kits. (Id.) Therefore, the inclusion of membership cards in the sanctuary kits does not raise a diversion concern.
B. The Express Procedure
According to Jessica Walsh, the express procedure began in the spring of 2009. (Walsh Dec., Doc. 667-1, p.3.) Through the express procedure, the THC Ministry offered cannabis to Ministry members and medical marijuana patients on Mondays, Wednesdays and Fridays, from 2:00 to 5:00 p.m. (Id.) Prior to instituting the express procedure, THC Ministry members met with Reverend Christie in private in order to receive cannabis. (Id.) THC Ministry worker Heather Duffy suggested the express procedure, and Reverend Christie went forward with it because “he wanted to help people[,]” and he felt like this procedure would enable him “to help more people”. (08/27/13 RT 42.) The members who wanted cannabis could receive it, and Reverend Christie had more time available to counsel and consult with those members who so requested such service.
Systems were in place which minimized the risk of diversion. First, the tenets of the THC Ministry required that members: (1) be sincere practitioners; (2) use cannabis in private, preferably at home or church; (3) limit their use of cannabis to religious use; and (4) not sell their cannabis. (Doc. 613-1, p.4-5; 8/27/13 RT, pp.26, 69, 77-78.) With few, if any, exceptions, Reverend Christie personally met, and conducted an orientation, with every THC Ministry member who resided on the Island of Hawaii and obtained cannabis through the express procedure. (08/27/13 RT 63-64, 69.) During these orientations and meetings, as well as on the THC Ministry s website, literature and advertisements, Reverend Christie repeatedly explained the tenets of the THC Ministry, and emphasized the requirements that Ministry members be sincere, and that they use cannabis only for religious purposes (e.g., Doc. 469-7, Doc. 613-1, 8/27/13 RT 15-17, 26-27, 43, 67, 69, 77). By personally meeting with each member, Reverend Christie also had an opportunity to observe their demeanor and listen to them, and thereby assess their sincerity (e.g., 8/27/13 RT 17, 68).
Second, Reverend Christie clearly instructed the Ministry s employees that only Ministry members and medical marijuana cardholders could obtain cannabis. (08/27/13 RT 20, 69; Walsh Dec., Doc. 667-1, p.5.) Approximately 85-90 percent of the people who acquired cannabis through the Ministry were members, and the remainder were medical marijuana patients. (Walsh Dec., Doc. 667-1, pp.8-9.)
Third, individuals were required to present their Ministry membership card or their medical marijuana card in order to obtain cannabis from the Ministry. There was a doorman on duty at the entrance to the Ministry, who welcomed members and checked identification cards. (Doc. 587-4, p.10; 8/27/13 RT 70.) Although Jessica Walsh testified that she never personally checked any identification in addition to the Ministry membership card or medical marijuana card, she also testified that she only served as the door person a few times, and that she could not speak for the regular doorman. (RT 13; see also RT 39, 70; R. Christie Dec., p.30.) Likewise, Ms. Walsh did not speak for anyone else that worked at the THC Ministry, which included more than seven others (08/27/13 RT 45). Moreover, Ms. Walsh worked at the THC Ministry for over a year (Walsh Dec., Doc. 667-1, p.1), and she therefore would have been acquainted with, and recognized, many THC Ministry members who acquired cannabis through the express procedure. Notably, most of the people who acquired cannabis through the express procedure were from the small town of Hilo (08/27/13 RT 29), where the Ministry was located. Ms. Walsh was not aware of a single instance in which one person (non-member or member) used another person s membership card (08/27/13 RT 21).
Based on the foregoing, the Christies respectfully submit that the government has failed to demonstrate any appreciable risk of diversion. Notably, the government bears the burdens of producing evidence and of persuasion. The government has not satisfied either burden. The government conducted a wiretap during three months that the express procedure was in operation (April July 2009), which resulted in approximately 15,000 recorded calls. The government has also produced the testimony of two cooperating witnesses, Walsh and Fiore, who participated in operating the express procedure. However, the government has still failed to present any evidence that the express procedure resulted in the diversion of any cannabis to non-members (see also Doc. 637-3, p.14, describing the grand scope of the government s investigation and its concomitant failure to produce any evidence of diversion to non-members).
Moreover, according to both Walsh and Fiore, the majority of the THC Ministry s distribution was limited to $20-$50 worth, or 1.5-3.5 grams, of cannabis to any individual (08/27/13 RT 22, 71; Doc. 667-1, p.4; Doc. 668-1, p.3). Thus, even if the government did demonstrate a risk of diversion to non-members, it would be a risk of diversion of small, personal use amounts. As explained below, the federal government does not have a compelling interest in preventing the risk of diversion of personal use amounts of sacramental cannabis to non-sacramental users.
C. The United States Department Of Justice s Guidelines Regarding Marijuana Enforcement Demonstrate That The Government Does Not Have A Compelling Interest In This Case
On August 26, 2013, the Christies filed supplemental exhibits in support of their RFRA motion, as well as a memorandum regarding those exhibits (Doc. 679, 680). In early 2013, at the direction of Attorney General Eric Holder, the United States Department of Justice “launched a comprehensive review of the criminal justice system in order to identify reforms that would ensure federal laws are enforced more fairly and in an era of reduced budgets– more efficiently” (Doc. 678-3, p.3 of 9). On August 12, 2013, the government published the “preliminary results of this review” (Id.), and Attorney General Holder called upon every member of the legal profession to “fight for the sweeping, systemic changes we need” to “reform a broken [criminal justice] system” (Doc. 680, p.3; Doc. 679-2, p. 6 of 7). The Justice Department noted that its “initial package of reforms” described in its Smart on Crime Report was “only the beginning of an ongoing effort to modernize the criminal justice system[,]”and that the Department would continue to hone its approach in the months ahead (Doc. 679-3, p. 4 of 9).
On August 29, 2013, two days after the evidentiary hearing in this matter, the Justice Department announced another reform to our broken criminal justice system. Deputy Attorney General James Cole issued a “Memorandum For All United States Attorneys” providing “Guidance Regarding Marijuana Enforcement” (hereinafter “DOJ Marijuana Memo,” attached hereto as Exhibit “1”). The DOJ Marijuana Memo clearly demonstrates that the diversion interest asserted by the government in this case is not a DOJ priority at all, much less a compelling one. The DOJ Marijuana Memo states:
[A]s several states [including Hawaii] enacted laws relating to the use of marijuana for medical purposes, the Department in recent years has focused its efforts on certain enforcement priorities that are particularly important to the federal government:

Preventing the distribution of marijuana to minors;

Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;

Preventing the diversion of marijuana from states where it is legal under state law in some form [e.g., Hawaii] to other states;

Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;

Preventing violence and the use of firearms in the cultivation and distribution of marijuana;

Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;

Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;

Preventing marijuana possession on federal property.
. . .
. . . The primary question in all cases and in all jurisdictions should be whether the conduct at issue implicates one or more of the enforcement priorities listed above.

Second, Reverend Christie clearly instructed the Ministry s employees that only Ministry members and medical marijuana cardholders could obtain cannabis. (08/27/13 RT 20, 69; Walsh Dec., Doc. 667-1, p.5.) Approximately 85-90 percent of the people who acquired cannabis through the Ministry were members, and the remainder were medical marijuana patients. (Walsh Dec., Doc. 667-1, pp.8-9.)
Third, individuals were required to present their Ministry membership card or their medical marijuana card in order to obtain cannabis from the Ministry. There was a doorman on duty at the entrance to the Ministry, who welcomed members and checked identification cards. (Doc. 587-4, p.10; 8/27/13 RT 70.) Although Jessica Walsh testified that she never personally checked any identification in addition to the Ministry membership card or medical marijuana card, she also testified that she only served as the door person a few times, and that she could not speak for the regular doorman. (RT 13; see also RT 39, 70; R. Christie Dec., p.30.) Likewise, Ms. Walsh did not speak for anyone else that worked at the THC Ministry, which included more than seven others (08/27/13 RT 45). Moreover, Ms. Walsh worked at the THC Ministry for over a year (Walsh Dec., Doc. 667-1, p.1), and she therefore would have been acquainted with, and recognized, many THC Ministry members who acquired cannabis through the express procedure. Notably, most of the people who acquired cannabis through the express procedure were from the small town of Hilo (08/27/13 RT 29), where the Ministry was located. Ms. Walsh was not aware of a single instance in which one person (non-member or member) used another person s membership card (08/27/13 RT 21).
Based on the foregoing, the Christies respectfully submit that the government has failed to demonstrate any appreciable risk of diversion. Notably, the government bears the burdens of producing evidence and of persuasion. The government has not satisfied either burden. The government conducted a wiretap during three months that the express procedure was in operation (April July 2009), which resulted in approximately 15,000 recorded calls. The government has also produced the testimony of two cooperating witnesses, Walsh and Fiore, who participated in operating the express procedure. However, the government has still failed to present any evidence that the express procedure resulted in the diversion of any cannabis to non-members (see also Doc. 637-3, p.14, describing the grand scope of the government s investigation and its concomitant failure to produce any evidence of diversion to non-members).
Moreover, according to both Walsh and Fiore, the majority of the THC Ministry s distribution was limited to $20-$50 worth, or 1.5-3.5 grams, of cannabis to any individual (08/27/13 RT 22, 71; Doc. 667-1, p.4; Doc. 668-1, p.3). Thus, even if the government did demonstrate a risk of diversion to non-members, it would be a risk of diversion of small, personal use amounts. As explained below, the federal government does not have a compelling interest in preventing the risk of diversion of personal use amounts of sacramental cannabis to non-sacramental users.
C. The United States Department Of Justice s Guidelines Regarding Marijuana Enforcement Demonstrate That The Government Does Not Have A Compelling Interest In This Case
On August 26, 2013, the Christies filed supplemental exhibits in support of their RFRA motion, as well as a memorandum regarding those exhibits (Doc. 679, 680). In early 2013, at the direction of Attorney General Eric Holder, the United States Department of Justice “launched a comprehensive review of the criminal justice system in order to identify reforms that would ensure federal laws are enforced more fairly and in an era of reduced budgets– more efficiently” (Doc. 678-3, p.3 of 9). On August 12, 2013, the government published the “preliminary results of this review” (Id.), and Attorney General Holder called upon every member of the legal profession to “fight for the sweeping, systemic changes we need” to “reform a broken [criminal justice] system” (Doc. 680, p.3; Doc. 679-2, p. 6 of 7). The Justice Department noted that its “initial package of reforms” described in its Smart on Crime Report was “only the beginning of an ongoing effort to modernize the criminal justice system[,]”and that the Department would continue to hone its approach in the months ahead (Doc. 679-3, p. 4 of 9).
On August 29, 2013, two days after the evidentiary hearing in this matter, the Justice Department announced another reform to our broken criminal justice system. Deputy Attorney General James Cole issued a “Memorandum For All United States Attorneys” providing “Guidance Regarding Marijuana Enforcement” (hereinafter “DOJ Marijuana Memo,” attached hereto as Exhibit “1”). The DOJ Marijuana Memo clearly demonstrates that the diversion interest asserted by the government in this case is not a DOJ priority at all, much less a compelling one. The DOJ Marijuana Memo states:
[A]s several states [including Hawaii] enacted laws relating to the use of marijuana for medical purposes, the Department in recent years has focused its efforts on certain enforcement priorities that are particularly important to the federal government:

Preventing the distribution of marijuana to minors;

Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;

Preventing the diversion of marijuana from states where it is legal under state law in some form [e.g., Hawaii] to other states;

Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;

Preventing violence and the use of firearms in the cultivation and distribution of marijuana;

Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;

Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;

Preventing marijuana possession on federal property.
. . .
. . . The primary question in all cases and in all jurisdictions should be whether the conduct at issue implicates one or more of the enforcement priorities listed above.
The instant prosecution does not further any of the enforcement priorities listed in the DOJ Marijuana Memo. Thus, by its own admission, the government lacks a compelling interest in this prosecution. (See also RFRA Motion In Limine (Doc. 587-3, p.14-16), regarding decline in vigor with which law makers and law enforcement officials have pursued prosecution of crimes involving cannabis).
The government has not alleged, much less produced any evidence, that the THC Ministry was distributing cannabis to minors. In fact, membership in the THC Ministry was limited to individuals 21 and older (R. Christie Dec., Doc. 587-4, p.12).
The government did not produce any evidence to demonstrate that this prosecution is necessary to prevent THC Ministry revenues from going to criminal enterprises, gangs, and cartels. The evidence establishes that the THC Ministry s revenues went to pay the people who worked at the Ministry, overhead such as rent for the Ministry premises, and of course to pay the cost to acquire the cannabis.. Moreover, this Court has found that Reverend and Sherryanne Christie have each satisfied their RFRA burden of demonstrating that cultivating and distributing cannabis to THC Ministry members and medical marijuana patients is part of the sincere exercise of their religion.
The government has not demonstrated a compelling interest in preventing the diversion of marijuana from the Island of Hawaii, where medical marijuana is legal, to other states.. The government produced evidence that Sanctuary Kits were mailed to states other than Hawaii. However, these were largely informational packets. (08/27/13 RT 33.) Included in these sanctuary kits was holy anointing oil, which consisted largely of olive oil and some essential oils, and a very small amount of cannabis. (08/27/13 RT 30-31.) The purpose of the oil was religious and symbolic. (08/27/13 RT 32.) It was a replication of the holy anointing oil referenced in the Bible. (08/27/13 RT 73.) It was used for prayer, blessing, anointing, and healing. (08/27/13 RT 33, 73.) It was not smoked or vaporized. It was not in a form that one could use to get high. (08/27/13 RT 31.) Other than the holy anointing oil, the government did not produce any evidence of any THC Ministry cannabis being distributed outside Hawaii.
The government did not produce any evidence that the THC Ministry was a cover or pretext for trafficking other illegal drugs or other illegal activity. To the contrary, this Court has found that Reverend and Sherryanne Christie have satisfied their RFRA burden of demonstrating that the THC Ministry s cultivation and distribution of cannabis to Ministry members and medical marijuana patients constituted sincere exercises of their religion. Moreover, cooperating government witness Jessica Walsh, who worked at the THC Ministry for 14 months (Doc. 667-1, p.1), testified that she believed it was a legitimate ministry, and that she never would have worked there if she believed it was a “front” for a drug dealing operation (08/27/13 RT 34).
There is absolutely no need to prosecute Reverend or Sherryanne Christie in order to prevent the use of violence or firearms. To the contrary, in 2001 the Drug Policy Forum of Hawaii honored Reverend Christie with the first “Ho omaluhia Peacemaker” award for his efforts to stamp-out the methamphetamine epidemic (Supplemental Cozad Dec., Doc. 637-4, p.10, 23.)
The government has not alleged, much less produced any evidence, that this prosecution is necessary to prevent drugged driving or other adverse public health consequences. Likewise, any nexus to public lands or federal property is wholly lacking in this case.
In sum, distribution of THC Ministry cannabis was restricted to Ministry members and medical marijuana patients. Distribution to these individuals was part of Reverend and Sherryanne Christie s sincere exercise of their religion. Systems were in place to guard against diversion. The government has not produced any evidence to demonstrate that the express procedure resulted in any actual diversion. Assuming arguendo that the government has demonstrated a risk of diversion, this risk was limited to diversion of 1.5 to 3.5 grams by any individual, i.e., small, personal use amounts. Particularly in light of the Justice Department s decision “to take bold steps to reform and strengthen America s criminal justice system –in concrete and fundamental ways” (Doc. 679-2, p. 2 of 7), one of which is its August 29, 2013 Memorandum setting forth “Guidance Regarding Marijuana Enforcement” (Exhibit “1”), it is clear that this arguable risk of diversion does not constitute a compelling government interest.

II. GOVERNMENT S FAILURE TO USE LEAST RESTRICTIVE MEANS

A. Recent Justice Department Pronouncements Demonstrate The Availability of Less Restrictive Means
Under RFRA, the government must demonstrate that this prosecution is the least restrictive means to further its interest in preventing diversion of the THC Ministry s cannabis to non-members. On July 31, 2013, this Court ruled that the government s memorandum in opposition did not present enough evidence to carry the burden of persuasion. (07/31/13 RT 21.) Since that ruling, the government has not presented any additional evidence to demonstrate that this prosecution constitutes the least restrictive means. To the contrary, as discussed in the Christies Joint Memorandum Regarding Submission of Supplemental Exhibits (Doc. 680, p.6-8), recent Justice Department pronouncements make clear that less restrictive means are available.
Moreover, the guidance set forth in the DOJ Marijuana Memo “rests on its expectation” that states which have legalized marijuana in some form, including Colorado and Washington which have legalized recreational use, “will implement strong and effective regulatory and enforcement systems” that will address, “for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system”. (Exhibit “1”, pp.2-3.) Under RFRA, the federal government has legalized marijuana in some form, and this Court has found that the Christies have satisfied their part of the RFRA burden (07/31/13 RT 7, 15). If the federal government can expect entire states to implement effective measures to prevent diversion, surely the federal government can implement such measures for a ministry in a small town on a remote island with approximately 2,000 3,000 local members, approximately 200-400 of whom received cannabis in a month s time (Doc. 587-4, p.14-15), mostly in increments of 1.5 – 3.5 grams at any given time (08/27/13 RT 22, 71; Doc.667-1, p.4; Doc. 668-1, p.3). See also Doc. 680, p.8, discussing DOJ s Smart on Crime Report s encouragement of “more widespread adoption of . . . diversion policies” “to deal with unique populations” (Doc. 679, p.6 of 9).
B. In Light Of The THC Ministry s Openness And Willingness To Work With Law Enforcement, Less Restrictive Means Are Available

The Christies have repeatedly asserted that Reverend Christie and the Ministry have a demonstrated record of openness and willingness to work with law enforcement (Doc. 587-3, p.15-16; Rev. Christie Dec., Doc. 587-4, p.17-18; Sherryanne Christie Dec., Doc. 587-5, p.5; Doc. 637-3, p.19; Doc. 680, p.8). This was further demonstrated at the evidentiary hearing. Jessica Walsh testified that she was aware that Reverend Christie would speak at County Council meetings and other public events about the THC ministry. (08/27/13 RT 36-37.) Victoria Fiore testified that a local Hilo police officer came by the Ministry and Reverend Christie willingly spoke to him. (Id. 75-76.)
Moreover, the government was aware of Reverend Christie s openness and willingness to work with law enforcement through Reverend Christie s recorded statements to the undercover agent. For example, on June 24, 2008, Reverend Christie told the undercover agent about a conversation he had with Hawaii County Prosecuting Attorney Mitch Roth, where Reverend Christie told Mr. Roth “we got an open door policy. Just call us. You know you can see what s going on” (Doc. 617-2, p.11). Rev. Christie further informed the undercover agent that he told Mr. Roth about his plan to have a greenhouse chapel to grow cannabis for the Ministry (Doc. 617-2, p.16). Rev. Christie also told the undercover agent how he felt about his conversation with Mr. Roth: “The prosecutor calling me up and putting me on the speaker phone. Oh my god it s cool man. I love my position” (Doc. 617-2, p.27). Rev. Christie further told the undercover agent that he would welcome a visit from the DEA (Doc 617-2, p.28), and he also described his cooperative relationship with the local police (Doc. 617-2, p.36-37), and how they gave him permission for the greenhouse (Doc. 617-2, p.42).
Similarly, on August 13, 2008, Rev. Christie told the undercover agent that “the feds are good to” him (Doc. 617-3, p.13), that he planned to be friends with the new mayor (Doc. 617-3, p.23), that the THC Ministry is a “public cannabis ministry” (Doc. 617-3, p.27), and that the “government . . . can come visit . . . if they feel like it” (Doc. 617-3, p.30).
On September 25, 2008, Reverend Christie once again told the undercover agent about his cooperative relationship with law enforcement, and its importance to him, as follows (Doc. 617-4, p.4):
UC: . . . Everything going good?

RC: Uh, it s better than before. It s really going great. We re on the verge of this enormous election. Uh, which is so positive, um, the Ministry, personally, uh, that I m grateful every day in here. Yesterday I met with the community police officer for downtown Hilo and I made an appointment with him, called him out of the blue. And, he was very nice and hospitable. Welcomed my girlfriend and I there. And said that in all his years of being the downtown Hilo community police officer, he never heard one complaint about our ministry. . . It was so nice to hear.

UC: Wow.

RC: And, it s not like we re secret. And so, to have a good reputation by the downtown police was really good.

The Christies have proposed a less restrictive means to minimize any arguable risk of diversion, which would have been for the government to notify Reverend Christie and request his cooperation in mitigating such risk. (Doc. 637-3, p.19-20; Doc. 680, p.8-9.) Notably, the government s evidence concerning any arguable risk of diversion was limited to the time period when the express procedure was in operation. It was during this time that a line would form going downstairs and onto the sidewalk in public view. (Doc. 667-1; Doc. 667-1, p.4, 8/27/13 RT 68.) Law enforcement officers visited the Ministry on at least two occasions while the express procedure was in operation, and even came inside and spoke with Rev. Christie on at least one such occasion. (08/27/13 RT 35-36, 75-76.) The THC Ministry was in operation for almost nine years prior to Reverend Christie s institution of the express procedure. An alternative far less restrictive to the instant prosecution would simply have been for the government to notify Reverend Christie of its concerns about the express procedure and request that he shut it down.
In O Centro Espiriata Beneficente Iniao Do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1266 (D.N.M. 2002), the district court found that the government failed to demonstrate a compelling interest in preventing diversion of hoasca, a schedule I controlled substance, to potentially harmful non-religious use, reasoning in part that the church s expert witness believed “its likely that the church would cooperate with governmental authorities to track down any tea that was diverted.” Here, compelling evidence has been presented that Reverend Christie, on behalf of himself and the THC Ministry, would cooperate with the government to effectively address any government concerns about diversion.
Where, as here, a defendant proposes a plausible less restrictive means than the means employed by the government, RFRA s strict scrutiny standard requires the government to demonstrate that the proposal is less effective than the means employed by the government. See Ashcroft v. American Civil Liberties Union, 524 U.S. 656, 665-69 (2004); Gonzales v. O Centro Espiriata Beneficente Iniao Do Vegetal, 546 U.S. 416, 429-30 (applying Ashcroft v. ACLU, reasoning that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the strict scrutiny test). Here, the government has wholly failed to respond to the Christies proposed less restrictive means, and has therefore failed to satisfy its RFRA burden.

C. Charges Which Trigger Mandatory Minimum Penalties Are Not The Least Restrictive Means

As a result of the Justice Department s recent pronouncements concerning the “draconian” nature of mandatory minimums, the Christies have asserted that the charges against them, which trigger these mandatory minimums, are not the least restrictive means. (Doc. 680, pp. 6-7.) This becomes even more clear when one reviews photographs of a portion of the 284 plants which trigger the mandatory minimum penalties in this case. (Doc. 681.) The government has not responded to the Christie s proposal that less severe charges which would not trigger mandatory minimum penalties would have been just as effective a means to further the government s interest. Therefore, the government has not satisfied its burden.
D. RFRA s Least Restrictive Means Element Must Contains A Notice Requirement

The Christies respectfully submit that under the facts of this case, where the Christies have met their burden under RFRA and have also demonstrated a willingness to work with law enforcement, the least restrictive means requirement must require the government to provide the Christies with notice of the government s assertion of a compelling interest prior to the imposition of criminal charges. Without this notice, the Christies were deprived of a reasonable opportunity to conform what this Court has found constitute bona fide exercises of their religion to the requirements of law. Moreover, the failure to recognize a notice requirement here would operate to inhibit the exercise of basic First Amendment freedoms. See Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). Therefore, a failure to include a notice requirement in RFRA s least restrictive means element would result in RFRA rendering the Controlled Substances Act unconstitutionally vague as applied in this case. See Doc. 469 and Doc. 555, which are incorporated herein by reference. See also Doc. 587-3, p.22. Surely the rule of lenity requires a notice requirement. (See Doc. 469-1, p.6, 18-19.)
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Aloha.

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E. The Government s Obvious Failure To Consider Less Restrictive Alternatives Undermines Its Claim That It Has Satisfied Its Burden

The government s memorandum in opposition demonstrates that the government never even considered any means other than the charges in this case. This is evident from the fact that the bulk of the government s memorandum focused on its claim that the Christies did not meet their RFRA burden. Moreover, after this Court ruled that the Christies did satisfy their RFRA burden, the government did not produce any evidence to suggest that it ever considered any alternatives to the charges in this case. The government s obvious failure to consider any less restrictive alternative undermines its claim that it has met its burden of demonstrating the least restrictive means element through its actual use of the broadest possible means, ie three mandatory minimum offenses.
F. U.S. V. LEPP DISTINGUISHED
This Court has indicated numerous times that guidance can be obtained from the District Court s written opinion in Lepp related to a request to present a RFRA defense at trial. In Lepp, the District Court found there was a compelling government interest to prevent diversion of marijuana, and that the least restrictive means of doing so was criminal prosecution. As Defendants Roger and Sherryanne Christie have asserted previously, the facts in Lepp differ greatly from the facts herein. (Doc. 637-4, pp.15-16.) First, Lepp involved nearly 25,000 cannabis plants on a farm that was easily accessible to the public. Second, it was well known by the public that the farm in Lepp cultivated marijuana plants as Lepp posted signs on his property indicating such, and the plants were visible in plain view from the highway. Third, the amount of cannabis plants in Lepp was grossly more than what Lepp needed for his ministry members. Lastly, following a hearing on the issue, there was actual evidence of diversion.
As the Court is aware, this case involves 284 cannabis plants. The plants were found at an indoor farm secluded and secured from the public. Many of the plants were very small. (Doc. 681.) Additionally, following lengthy briefing, and an evidentiary hearing, there is no evidence proffered by the government of actual diversion to non-members in this case as there was in Lepp. Instead, there is evidence that Reverend Christie only obtained the amount of cannabis necessary to satisfy the needs of his ministry. In addition to there being evidence of actual diversion in Lepp, Lepp had 100 times more plants than Reverend and Sherryanne Christie in this case. These facts were surely not lost on the District Court Judge in Lepp when she wrote as follows:
Similarly, here, in light of evidence of actual diversion, the court is convinced that the least restrictive means to circumvent the diversion of mass quantities of marijuana to non-adherents of Rastafarianism is a blanket rule criminalizing large quantities of marijuana. Although the Court does not reach the question of the amount of marijuana that would not raise diversion concerns, the Court concludes that the quantity here, approximately 25,000 marijuana plants, is sufficient enough to warrant a blanket rule without exceptions.

With only 284 plants involved, and no evidence of actual diversion, this case presents a scenario where enforcement of a blanket rule without exceptions through the mechanism of federal prosecution is clearly not the least restrictive means to prevent diversion.
Moreover, changed circumstances can render a government s interest less compelling than it once was, and what was once deemed a well-tailored application of a statute no longer so. U.S. v. Antoine, 318 F.3d 919, 922 (9th Cir. 2003). The recent Justice Department pronouncements discussed supra constitute compelling

changed circumstances.
G. THE APPLICABLE STANDARD OF PROOF
In their RFRA Motion in Limine and Reply, the Christies assert a right to a jury determination of all elements of their RFRA defense, including a jury determination of whether the government has satisfied its burden of demonstrating compelling interest and least restrictive means. (Doc. 587-3, pp. 21-22; Doc. 637-3, pp. 25-27.) Based on the arguments set forth in support of their assertion of a right to a jury determination of these issues, it necessarily follows that the applicable standard of proof should be beyond a reasonable doubt.
Moreover, this Court has found that the Christies have met their part of the RFRA burden, and that the burden has shifted to the government. Where the government bears the burden of proof in connection with an affirmative defense, the applicable standard of proof should be beyond a reasonable doubt. See e.g. U.S. v. Gurolla, 333 F.3d 944, 956 (9th Cir. 2003) (where defendant meets his part of the burden for an entrapment defense, government bears burden of proving predisposition beyond a reasonable doubt).
Accordingly, the Christies respectfully object to the Court s use of the preponderance of the evidence standard, and instead request that the reasonable

doubt standard be used.

DEFENDANT SHERRYANNE CHRISTIE S
SUPPLEMENTAL POST HEARING BRIEF (RFRA)

Defendant Sherryanne Christie, by and through undersigned counsel, has filed, concurrently herewith, a Joint Post Hearing Brief (RFRA) with her husband, co-defendant Roger Christie, which is incorporated herein by reference. Defendant Sherryanne Christie files this Supplemental Post Hearing Brief to discuss facts and issues unique to her.
“RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person the particular claimant whose sincere exercise of religion is being burdened.. 42 U.S.C. 2000bb-1(b).” Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 430-31 (2006).
Here, Sherryanne Christie became a member of the THC Ministry seven years into its very public existence (Sherryanne Christie Dec., Doc. 587-5, p.3; 8/27/13 RT 44). Roger Christie told Sherryanne Christie, just as he had told Jessica Walsh, Victoria Fiore, the undercover agent and others, that his Ministry was operating lawfully (Sherryanne Christie Dec., Doc. 587-5, p.5; Roger Christie Dec., Doc. 587-4, p.17-18; 8/27/13/ RT 17, 34, 69; Joint Post Hearing Brief, filed concurrently herewith, Section II.B). Sherryanne Christie believed Roger Christie (Doc. 587-5, p.5).
No evidence was presented which would suggest that Sherryanne Christie had any role in setting the tenets of the Ministry, conducting orientations, hiring workers or defining their duties, meeting with suppliers, or setting donation prices (8/27/13 RT 39, 44, 62-63).
According to Jessica Walsh, after THC Ministry worker Heather Duffy suggested the express procedure, Sherryanne Christie said she thought it was a good idea, and she may have provided her opinion concerning unspecified aspects of the express procedures, but Roger Christie made the decisions (8/27/13 RT 44, 48). Jessica Walsh further testified that she was generally required to obtain Roger s permission for things (Id., at 19).
Sherryanne Christie managed the Ministry for approximately two months when Roger Christie broke his ankle (Sherryanne Christie Dec., Doc. 587-5, p.4; Doc. 667-1, p.4; Doc. 668-1, p.4; 8/27/13 RT 40). No evidence was presented concerning Sherryanne Christie s involvement in operating the express procedure at any other time (see 8/27/13 RT 38). When Sherryanne Christie filled in for Roger Christie, she did so in reliance on her belief, based on Roger Christie s statements to her and the Ministry s years of operating a very public and open existence, that the Ministry s operations were lawful. Sherryanne Christie managed the Ministry in accord with procedures instituted by Roger Christie. There is no indication that Sherryanne Christie ever engage in activities like this prior to meeting and relying on Roger Christie.
In determining whether the prosecution of Sherryanne Christie furthers a compelling governmental interest, the Court must scrutinize the harm that would result to the government s interest if this prosecution did not proceed. O Centro, 546 U.S. at 431. To the extent that any arguable risk of diversion exists in this case, the government s interest can be fully accommodated by means directed at Roger Christie, the founder and leader of the THC Ministry on whom Sherryanne Christie relied. No harm to the government s interest would result from declining to prosecute Sherryanne Christie.
For these same reasons, the instant prosecution of Sherryanne Christie does not constitute the least restrictive means to further the government s interest. The government does not achieve any additional benefit to its interest by expanding its means to included Ministry members, rather than confining its efforts to the Ministry s founder and leader. See Callahan v. Woods, 736 F.2d 1269, 1272-73 (9th Cir. 1984) (if a compelling government interest can be accomplished despite the exemption of a particular individual, then the denial of an exemption to this individual is not the least restrictive means).
Sherryanne Christie recognizes that the Court s least restrictive means analysis must focus on Sherryanne Christie and others similarly situated. However, there is a fundamental distinction between a Ministry s founder and leader, and those, like Sherryanne Christie, who act in reliance on him.
DATED: September 4, 2013, Honolulu, Hawaii.
Respectfully submitted,

LYNN E. PANAGAKOS
Attorney for Defendant
SHERRYANNE L. CHRISTIE

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