United States v. Jefferson, Jarvis ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1864
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROHI ISRAEL f/k/a JARVIS JEFFERSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:95-CR-25—William C. Lee, Chief Judge.
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ARGUED SEPTEMBER 26, 2002—DECIDED JANUARY 30, 2003
____________
Before COFFEY, ROVNER, and DIANE P. WOOD, Circuit
Judges.
COFFEY, Circuit Judge. Defendant-Appellant Jarvis
Jefferson, now known as Rohi Israel (“Israel”), is a felon
who admits smoking marijuana “every day all day.” He
appeals the revocation of his supervised release, arguing
that his frequent marijuana use should be permitted as
it is based upon his religious belief in Rastafarianism.
We affirm.
I. FACTUAL BACKGROUND
In January 1996, Israel was sentenced to seventy months
in prison after entering a plea of guilty to being a con-
2 No. 02-1864
victed felon in possession of a firearm. While in confine-
ment, he participated in a substance abuse treatment pro-
gram. Furthermore, while incarcerated he decided to join
the Rastafarian religion, which encourages its adherents
to smoke marijuana.
On February 15, 2001, Israel completed his term of
imprisonment and began his three-year term of super-
vised release. The “Standard Conditions of Supervised
Release” with which Israel was to comply required him
to “refrain from the excessive use of alcohol,” and forbade
him from “purchas[ing], possess[ing], us[ing], distribut[ing],
or administ[ering] any narcotic or other controlled sub-
stance, or any paraphernalia related to such substances,
except as prescribed by a physician.” Israel was also
obliged to submit to random urinalysis tests.
At a scheduled probation revocation hearing on October
25, 2001, U.S. Probation and Pretrial Services Officer
Ned Edington, Israel’s parole officer, testified that Israel
had tested positive for marijuana over a dozen times
between April and October of 2001. Edington stated that
several of these tests established levels indicative of “very
serious” and “abusive usage.” At the hearing, although
Israel’s attorney acknowledged that the test results were
positive, he refused to stipulate that the tests accu-
rately reflected the level of Israel’s drug use. Israel also
acknowledged that he was aware of the fact that smok-
ing marijuana was in violation of the terms of his super-
vised release.
On December 12, 2001, the district court entered a
Memorandum of Decision and Order finding that Israel
had violated the terms and conditions of his supervised
release by testing positive for marijuana; he was subse-
quently sentenced to eleven months in prison. The district
court stayed the execution of his sentence pending the
outcome of this appeal. This Court has jurisdiction pursu-
ant to 28 U.S.C. § 1291.
No. 02-1864 3
II. DISCUSSION
Israel argues that the district court’s revocation of his
supervised release violated his right, as a practicing
Rastafarian, to the free exercise of his religion under the
Free Exercise Clause of the First Amendment and the
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a),
(“RFRA”).
A. Standard of Review
Where First Amendment concerns are at issue, appellate
courts must conduct an “ ‘independent examination of the
whole record’ in order to make sure that ‘the judgment
does not constitute a forbidden intrusion on the field of
free expression.’ ” Bose Corp. v. Consumers Union, 466 U.S.
485, 499 (1984) (quoting New York Times Co. v. Sullivan,
376 U.S. 254, 284-86 (1964)). As this appeal demands
an analysis of constitutional issues and not factual dis-
putes, the standard of review is de novo. See Sequoia Books,
Inc. v. Ingemunson, 901 F.2d 630, 633 (7th Cir. 1990).
B. Free Exercise Clause
In Employment Division v. Smith, 494 U.S. 872 (1990),
the Supreme Court held that neutral laws of general
applicability that have the effect of burdening religious
practices do not violate the Free Exercise Clause. 494 U.S.
at 883. The parties here do not dispute that laws against
drug use and laws concerning supervised release pro-
grams are of general application, nor do they disagree that
these laws had the effect of burdening Israel’s free exer-
cise of his religious beliefs. Thus, if Israel is to prevail in
his claim that the revocation of his parole violated the free
exercise of his religion, he must do so on the basis of
his claims under RFRA. See United States v. Indianapolis
Baptist Temple, 224 F.3d 627, 629 (7th Cir. 2000), cert.
denied, 531 U.S. 1112 (2001).
4 No. 02-1864
C. RFRA
Under RFRA, a “person whose religious exercise has
been burdened in violation of this section may assert
that violation as a claim or defense in a judicial proceeding
and obtain appropriate relief against a government.” 42
U.S.C. § 2000bb-1(c). RFRA provides that the govern-
ment “shall not substantially burden a person’s exercise
of religion even if the burden results from a rule of gen-
eral applicability” unless the government demonstrates
that application of the burden to the person “(1) is in
furtherance of a compelling governmental interest; and (2)
is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000bb-1 (emphasis
supplied). The statute itself recited that its purpose was
to “restore the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin
v. Yoder, 406 U.S. 205 (1972), and to guarantee its applica-
tion in all cases where free exercise of religion has been
substantially burdened.” 42 U.S.C. § 2000bb(b)(1) (empha-
sis supplied).
In City of Boerne v. Flores, 521 U.S. 507 (1997), the
Supreme Court struck down RFRA’s application to the
states, but left open the possibility that RFRA still ap-
plied to the federal government. See 521 U.S. at 516. At
least two other circuit courts of appeal have held that
RFRA still applies to the federal government. See Kikumura
v. Hurley, 242 F.3d 950, 953 (10th Cir. 2001) (holding
that a plaintiff had a “substantial likelihood” of success
in proving that a prison warden’s denial of a pastoral visit
violated RFRA); Christians v. Crystal Evangelical Free
Church (In re Young), 141 F.3d 854, 856 (8th Cir. 1998)
(ruling that RFRA prevents the recovery of a debtor’s
religious tithes as “avoidable transactions” in bankruptcy
proceedings). We must make clear that this conclusion
is not universal, however. See, e.g., La Voz Radio de la
Communidad v. FCC, 223 F.3d 313, 319 (6th Cir. 2000)
No. 02-1864 5
(expressing “doubt” that RFRA is still constitutional as
applied to federal law).
This Court recently held that while RFRA’s constitu-
tionality as applied to the federal government was “not
without doubt,” it would “assume [RFRA] is constitu-
tional” when the parties chose not to dispute its constitu-
tionality. See Indianapolis Baptist Temple, 224 F.3d at629 n.1. The trial court in this case found that RFRA, at
least as it applied to the federal government, was constitu-
tional. As the government did not contest RFRA’s constitu-
tionality, we will likewise assume in this case only that
it is constitutional for the purposes of this appeal.
The district court’s decision noted that under RFRA, a
plaintiff establishes a prima facie violation if he can
demonstrate that the government’s action was a (1) sub-
stantial burden on a (2) sincere (3) exercise of religion.
Having done so, the court explained that the burden
shifted to the government to prove that it had a compel-
ling interest that the statute protected by the least re-
strictive means possible.
The district court found for Israel on the first and sec-
ond issues; i.e., that the supervised release condition was
a substantial burden on Israel’s sincere belief. As the
government had stipulated on the third issue; i.e., that
Israel was engaged in the exercise of a religious belief, the
sole issue on appeal is whether the district court erred
in ruling that the government had established that it
had a compelling interest that was protected by the least
restrictive means possible.
The district court found that the government demon-
strated its compelling interest in (1) the uniform enforce-
ment of drug laws to prevent harm to the public health
and safety, and (2) the uniform application of conditions
of supervised release to all defendants. The court also
found that the parole conditions were the least restric-
6 No. 02-1864
tive means for accomplishing these objectives because of
the “significant administrative problems” that would re-
sult if religious exceptions would be carved out in these
types of cases. The court rejected Israel’s invitation to
rely on United States v. Valrey, 2000 WL 692647 (W.D. Wa.
Feb. 22, 2000), in which a federal district court in Wash-
ington state modified the terms of supervised release for
a Rastafarian parolee who had tested positive for mari-
juana use, allowing for such use within certain limits.1
Whether the government has a compelling interest
in preventing drug abuse can hardly be disputed. In
enacting the Controlled Substances Act, 21 U.S.C. §§ 801,
et seq., Congress stated that “[t]he illegal importation,
manufacture, distribution, and possession and improper use
of controlled substances have a substantial and detrimental
effect on the health and general welfare of the American
people.” 21 U.S.C. § 801(2). Congress’ inclusion of mari-
juana as a Schedule I controlled substance makes it clear
the belief that Israel’s drug of choice is a serious threat
to the public health and safety. See also National Treasury
Employees Union v. Von Raab, 489 U.S. 656, 674 (1989)
(calling drug abuse “one of the most serious problems
confronting our society today”). Furthermore, there is ample
medical evidence establishing the fact that the excessive
use of marijuana often times leads to the use of stronger
drugs such as heroin and crack cocaine. See, e.g., Fernando
A. Wagner & James C. Anthony, Into the World of Illegal
Drug Use: Exposure Opportunity and Other Mechanisms
Linking the Use of Alcohol, Tobacco, Marijuana, and
Cocaine, 155 Am. J. Epidemiology 1 (2002).
Before the United States Supreme Court decision in
Smith, courts had to apply the “compelling interest” test
1
This Court wishes to remind Israel’s counsel that pursuant
to Circuit Rule 53, unpublished cases shall not be cited or used
as precedent.
No. 02-1864 7
when applying drug laws against religious objections. There
is substantial authority to support the conclusion that
even under this more demanding standard, courts have
properly refused to allow exceptions for marijuana use.
See, e.g., Olsen v. DEA, 878 F.2d 1458, 1460-63 (D.C. Cir.
1989) (allowing regulation of “sacramental” marijuana use
by Ethiopian Zion Church because of the government’s
“compelling interest”); United States v. Middleton, 690
F.2d 820, 823 (11th Cir. 1982) (same); United States v.
Rush, 738 F.2d 497, 513 (1st Cir. 1984) (“Every federal
court that has considered the matter . . . has accepted
the congressional determination that marijuana in fact
poses a real threat to individual health and social welfare,
and has upheld the criminal sanctions for possession
and distribution of marijuana even where such sanctions
infringe on the free exercise of religion.”).
In light of this impressive amount of legislative and
judicial reasoning, we conclude that the government has
a proper and compelling interest in forbidding the use
of marijuana. Furthermore, demanding that a convicted
felon on parole abstain from marijuana use is a legitimate-
ly restrictive means for safeguarding this interest. Any
judicial attempt to carve out a religious exemption in
this situation would lead to significant administrative
problems for the probation office and open the door to
a weed-like proliferation of claims for religious exemp-
tions. See United States v. Oliver, 255 F.3d 588, 589 (8th
Cir. 2001) (rejecting a RFRA-based argument for a judicial
exception to a criminal statute). Furthermore, permitting
probationers to smoke pot presents a potential liability
problem for the public and the government, including the
probation department—e.g., a person on parole who is
under the influence of marijuana may wander into the
street or even operate a motor vehicle or some other
mechanical equipment and may very well injure himself
or some innocent bystander. See, e.g., Weissich v. United
8 No. 02-1864
States, 4 F.3d 810, 812-13 (9th Cir. 1993) (holding that a
probation officer was not liable for the acts of a proba-
tioner, provided the Federal Tort Claims Act “discretionary
function” exception applied to the specific conduct in
question). We therefore affirm the district court’s deci-
sion to revoke Israel’s supervised release.
We note in passing—not that we need to hash out an-
other justification in full—that we could have affirmed
the district court’s decision on other grounds. As the judge
noted, Israel violated at least two other conditions of his
parole; namely, to support his dependent son and to keep
a job. Condition number four of his supervised release
obligates him to “support his . . . dependents and meet
other family responsibilities.” Condition number five
states that Israel “shall work regularly at a lawful oc-
cupation unless excused by the probation officer for school-
ing, training, or other acceptable reasons.”
At the October 25, 2001 hearing on the government’s
petition to revoke Israel’s supervised release, Israel admit-
ted to violating both of these conditions. The hearing
transcript contains the following exchange between Israel
and the assistant U.S. attorney:
Q: Now, you say that you smoke all day every day to
give praise to God. What about your responsibilities
with respect to the world. You have a child, don’t you?
A: To the world?
Q: Yeah, the world in which you live in?
A: Okay. It is respect to the world.
Q: You have a child?
A: That’s right.
Q: And you owe child support to that child, right?
A: That’s right.
No. 02-1864 9
Q: And you’re not working right now, are you?
A: That’s right.
Q: Now, you talked about people growing marijuana.
Do you grow marijuana?
A: Do I grow marijuana?
Q: Mmm-mm. Are you growing it now?
A: No.
...
Q: You’re going to have to buy it, aren’t you?
A: Uncle Sam going to tax, yeah, he going to get his
cut, yeah.
Q: So you buy it from people on the street?
A: That’s right. Yeah.
Q: Now, where do you get the money to buy the
marijuana if you’re not working?
...
A: How do you know that I don’t work?
Q: You said you don’t work.
A: I might not work according to your all system. You
don’t know what that mean? I might have my own
detail shop, I might go work for somebody or something.
Q: So you are working and finding ways to make
money?
A: Ahh, Rastafar right. You know I can’t go and get no
job, me smoking herbs and all that, right? Rastafar
right. Hmmm.
(10/25/01 Hearing Tr. at 52.)
This exchange demonstrates that Israel breached his
obligation to provide for his minor son and hold a job; it
10 No. 02-1864
also reveals two more violations stemming directly from
Israel’s marijuana habit; namely, the general condition
that he “shall not commit another federal, state or local
crime” and, under condition number nine, that he “not
associate with any persons engaged in criminal activ-
ity. . . .” By admitting he (somehow) illegally purchased the
marijuana he was smoking “every day all day,” Israel
implicitly acknowledged he was encouraging third par-
ties to engage in criminal activity, thus perpetuating the
distribution of unlawful narcotics. This not only strength-
ens the government’s case that it has a “compelling inter-
est” in forbidding Israel’s pot-smoking; it proves beyond
a doubt that Israel has violated the conditions of his su-
pervised release.
III. CONCLUSION
The decision to grant the government’s petition to re-
voke Israel’s supervised release is hereby AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-30-03