MEMORANDUM OF POINTS AND AUTHORITIES

I.     INTRODUCTION

        Defendant BENNY TOVES GUERRERO ("GUERRERO") has been charged with the importation of marijuana in violation of 9 G.C.A. Sections 67.23 (d)(10), 67.89(a), and 80.33.7.  Defendant GUERRERO maintains that these statutes are unconstitutional as applied to him on the following grounds.

        Defendant GUERRERO requests the Court to grant him the right to freely practice his religion as guaranteed collectively by the U.S. Constitution, the Organic Act of Guam, the Treaty of Peace between the U.S. and Spain and the RFRA, by dismissing the charges against him.

II.     FACTUAL BACKGROUND

        Defendant GUERRERO is a Rastafarian priest with no prior criminal record.  On the 2nd day of January, 1991, he was arrested for allegedly "knowingly importing" marijuana into Guam, in violation of 9 G.C.A. Sections 67.23(d)(10), 67.89(a), and 80.33.7.

III.     LEGAL DISCUSSION

        The Organic Act has also made it a point to respect religion in two (2) other subsections of Section 5:

        In addition, Section (u) incorporates the First Amendment right to free exercise of religion found in the Constitution of the United States: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

        When the United States acquired Guam, pursuant to the Spanish-American War, the Treaty of Peace between the United States and Spain of 1898, also guaranteed the free religious expression to "the native inhabitants of the territories" in two (2) articles:

Treaty of Peace between the United States and Spain of 1898, a copy of which is attached hereto marked Exhibit "B" and incorporated herein by this reference.

        These two (2) documents alone, the United States Constitution and the Treaty of Peace between the United States and Spain, prove that a citizen has the right to freely practice his/her own religion without penalty.  They further prove it was the intent of the United States to permit such practice.

        Defendant GUERRERO is a priest of the Rastafarian religion, and has been charged with importation of marijuana in alleged violation of Guam law.  The application of these statutes impinges upon Defendant GUERRERO's right to the free exercise of religion guaranteed by the United States Constitution, the Guam Organic Act, The Treaty of Peace between the United States and Spain, and the RFRA of 1993.  Furthermore, this impingement is improper, because Defendant GUERRERO's pursuit of his religion does not frustrate a compelling government interest of Guam.  Thus, Defendant GUERRERO cannot be constitutionally prosecuted under the above statutes.

        The RFRA, signed into law by President Clinton in 1993, protects the free exercise of religion.  It was deemed unconstitutional as applied to state and local governments by the Supreme Court.  City of Boerne v. Flores, 117 S.Ct. 2157, 2162 (1997).  However, the court did not determine and the parties in Flores did not contend, that RFRA is unconstitutional as applied to federal law and to federal branches, departments, agencies and instrumentalities.  Justice Kennedy in Flores affirmed that the RFRA:

        The RFRA states that "the government shall not substantially burden a person's exercise of religion even if the burden results from the rule of general applicability ..." with certain exceptions noted.  Id.  Section 3(a).  Moreover, the RFRA provides that "a person whose religious exercise has been substantially burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding ...".  Id.  Section 3(c).

        In United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996), the Ninth Circuit held that a defendant should be permitted to present a defense that his Rastafarian religion made it necessary for him to possess marijuana.  The court ruled that under RFRA, "the government had the obligation, first to show that the application of the marijuana laws to the defendants was in furtherance of a compelling governmental interest and second, to show that the application of these laws to the defendants was the least restrictive means of furthering that compelling government interest."  Id. at 1559.

        Therefore, under the mandate of the RFRA, there must exist compelling state interest and the least restrictive means must be used to further that state interest, before a law can burden a person's right to religious expression.  However, the Guam statutes against marijuana, by themselves, do not support a compelling state interest in denying Defendant GUERRERO's use of a sacramental herb in his religion.  Therefore, the need to evaluate the presence of a "least restrictive means for furthering that interest" need not be sought.   Should there have been a compelling government interest, the means for furthering that interest would then be tested to determine whether it is the least restrictive means used.  If so, then the statutes' validity would stand.

THE STATE MUST DEMONSTRATE A COMPELLING NEED IN ORDER TO DENY THE RIGHT OF FREE EXERCISE OF RELIGION.

        In People v. Woody, 40 Cal.Rptr. 69 (1964), the Supreme Court of California reiterated the strict requirements that must be satisfied before a state can constitutionally abridge a person's freedom of religious practice:

See also, Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965; In re: Jenison, 375 U.S. 14, 84 S.Ct. 63, 11 L.Ed.2d 39; Braunfeld v. Brown, 366 U.S. 599, 613-614, 81 S.Ct. 900, 84 L.Ed. 1213; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 643-644, 63 S.Ct. 1178, 87 L.Ed. 1628; People v. Mullins, 50 Cal.App.3d 61, 123 Cal.Rptr. 201 (1975).¹

        In Woody, the court addressed the constitutionality of the application of anti-peyote legislation to the Native American Indians who used peyote in pursuit of their religious faith.  The court utilized the analysis implied in the now legendary case of Sherbert v. Verner.

        In Sherbert, supra, the Supreme Court held that South Carolina could not refuse unemployment compensation benefits to a woman who could not obtain employment due to her religious objections to working on Saturdays.  The Supreme Court made it clear that exercise of religious belief must be accorded the highest of respect: "Only the gravest abuses, endangering paramount interest, give occasion for permissible limitations."  Sherbert v. Verner, 374 U.S. at 405, 83 S.Ct. at 1795.

        In determining whether such "grave abuse" exists, the court in Sherbert employed a two-fold analysis.   This analysis was, in turn, employed by the court in Woody:

        Upon application of this analysis, the court in Woody determined that indeed, a statute forbidding the use of peyote impermissibly impinged on the defendants' right to exercise their religious beliefs.   We shall see that this same result will be reached upon consideration of the statutes that now impinge upon Defendant GUERRERO's right to free exercise of religion.

        As a preliminary matter, it should first be established that Defendant GUERRERO's practice of Rastafarianism is indeed the practice of a religion.  Numerous cases, most notable in the field of prison rights, have accepted Rastafarianism as a religion, and have analyzed religious claims accordingly:  "The Rastafarians are a religious sect."  Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988).  "Rastafari is a religion with roots in Jamaican culture." Benjamin v. Coughlin, 708 F.Supp. 570 (S.D.N.Y. 1989).   "The Rastafarian religion was founded in Jamaica ...  Defendants [New York Department of Correctional Services, et al.] do not raise the issue whether Rastafarianism is a religion protected by the First Amendment.  That issue has been resolved against them in state court."  Beniamin v. Coughlin, 905 F.2d 571 (2nd Cir. 1990).  Gayle v. Human Rights Commission, 218 Ill.App.3d 109, 578 N.E.2d 144 (1991);  Overton v. Coughlin, III., 133 A.D.2d 744, 520 N.Y.S.2d 32 (1987);  People v. Lewis v. Commissioner of Dept. of Correctional Services of the State of New York, 68 N.Y.2d 923 (1986);  Barnes v. Government of the Virgin Islands, 415 F.Supp. 1218 (1976).

The real center of the movement's religiosity is the revelatory
dimensions brought about by the impact of the "holy herb" ...
The herb is the key to new understanding of the self, the
universe, and God.  It is the vehicle to cosmic
consciousness; it introduces one to levels of reality not
ordinarily perceived by the non-Rastafarians.  Leonard E.
Barrett, Sr., The Rastafarians 254 (1988).

        Much in the way peyote "fosters a feeling of friendliness toward other people", Woody, 40 Cal.Rptr. at 73, marijuana "develops a certain sense of fusion with all living being."  Leonard E. Barrett, Sr., The Rastafarians 254 (1988).

        For Native Americans, "Peyote ... is the sine qua non of defendants' faith.  It is the sole means by which defendants are able to experience their religion; without peyote, defendants cannot practice their faith."  Woody, 40 Cal.Rptr. at 76.  For the Rastafarians, the sanctity of marijuana is likewise central:

Marijuana is a dominant symbol among Rastafarians, and is
absolutely essential, in their view, to their religious
observance.

Soul Rebels: The Rastafarians and the Free Exercise Clause, 72 Geo.L.J. 1609 (1984).

        The Rastafarians are also similar to the Native Americans in their refusal to condone the recreational use of marijuana.   In the same manner that "To use peyote for non-religious purposes is sacrilegious".  Woody, 40 Cal.Rptr. at 73,

[T]o the Rasta, there is no such thing as recreational use of
ganja.  ... It's a sacred substance.

He causeth the grass to grow for cattle and herb for the
service of man.  Psalms 104:14.

And God said, Behold, I have given you every herb bearing
seed, which is upon the face of all the earth...  And God saw
everything that he had made, and, behold, it was very good.
(Genesis, 1:29 & 31).

God makes the earth yield healing herbs which the prudent
man should not neglect.  (Sirach 38:4).

        Having determined that the statutes do indeed burden Defendant GUERRERO's exercise of his religion, Woody and the RFRA now dictate that we undertake the second step in the analysis: "a determination of whether the state has demonstrated a "compelling state interest" which necessitates an abridgement of defendants' First Amendment right."

        In Woody the court examined a state's possible interests in denying a religious use exemption for peyote:

        While these goals are indeed noble ones, upon a closer examination, the court in Woody came to the realization that the state's anxiety was without reason.  Likewise, an examination of the vast information now available reveals that this is also the case with the interests that Guam has in forbidding a religious exemption for marijuana.

        In Woody, the court first examined the possibility of harm to the Indian community should the religious use of peyote be allowed.  The court came to the conclusion that "The record, however, does not support the state's chronicle of harmful consequences of the use of peyote", and that as the Attorney General likewise admits, the opinion of scientists and other experts is "that peyote ... works no permanent deleterious injury to the Indian".  Id. at 74.

        Studies on marijuana usage have likewise failed to support a claim of harmful consequences.  In Readings from Scientific American, Altered States of Awareness (1972), Lester Grinspoon came to the conclusion, after discussing several studies, that "There is a substantial body of evidence that moderate use of marijuana does not produce physical or mental deterioration."  Id. at 95.  In a study by Andrew T. Wiel, Norman E. Zinberg and Judith M. Nelsen of the Boston University School of Medicine conducted shortly before the publication of Grinspoon's article, tests were given to two (2) groups of subjects: chronic marijuana users and first time users.  The results were as follows:

Inability to maintain sustained attention ... the performance
of both groups was unaffected either by a low dose or by a
high dose of the drug.  In cognitive functioning ... the drug-
naïve group showed some impairment during the high, but
the performance of experienced users of marijuana showed
no significant impairment and in fact on the higher doses
revealed a coordination and attention ... the results were the
same ... .  Id. at 92.

        These results were in keeping with results obtained during an "intensive investigation" conducted in the 1930's.   These tests became known as the La Guardia Study, and in some "tests of memory and of verbal facility the performances either were not impaired or actually were improved under the influence of low doses of the drug".  The La Guardia tests also revealed that:

... even in large doses marijuana did not affect performance
on tests of the speed of tapping or the quickness of
response to simple stimuli.  Nor did it impair hearing acuity,
musical ability or the ability to judge short time periods or
short distances accurately.  Id. at 91, 92.

The La Guardia Study found the same results even upon examination of "chronic" users who had "averaged about seven marijuana cigarettes a day (a comparatively high dosage) over a long period (the mean was eight years):"  The study of these subjects revealed that "they had suffered no mental or physical decline as a result of their use of the drug."  Id. at 95.

They found that performance on six of the eight tests was
not impaired even by high doses of the drug.  The two tasks
on which performance was affected were reaction time and
learning of a digit code; however, in the case of the former
this conclusion was based on data from only two subjects,
and in the latter test it was based on data from five subjects,
one of whom actually showed improvement while receiving
the drug.  Id. at 92.

81% of persons arrested for marijuana-related crimes have
never been convicted of any crimes in the past, and 91%
have never been convicted of a drug-related crime.  Id. at
508.

Defendant GUERRERO himself supports these statistics.  Until arrested for the present charges, he had never been arrested or charged with any crime.   Indeed, he has never even received a traffic ticket.

        It should be noted that both the La Guardia and the University of Utah studies revealed a loss of speed and accuracy.   However, it goes without saying that if such reactions justify a state's ability to forbid a religious use of marijuana, the same should be held for alcohol and peyote as well.  Indeed, time and again marijuana has been proven less dangerous and harmful than two (2) very legal substances: alcohol and tobacco.

According to the American Lung Association cigarettes and
tobacco smoking related diseases kill 434,175 Americans
every year ... .  While ... cannabis has never caused a
known case of lung cancer as of March 1992, according to
America's foremost lung expert, Dr. Donald Tashkin of
UCLA.  Id. at 80.

        Like the court in Woody, we have a plethora of studies attesting to the lack of danger associated with marijuana.   The court in Woody took the information available on peyote and made a leap of faith, authorizing a practical application of study results by allowing a religious use of peyote by the Native Americans without any prior proof that no harm would indeed result.  Fortunately for this Court, such a leap need not be made.  For fifteen (15) years the entire state of Alaska permitted personal possession and use of marijuana by every adult in that state.  Alaska serves as an actual case study of the effect of legalizing the personal use of marijuana.  In March of 1983, nearly eight (8) years after Ravin legalized personal use of marijuana, Michael Dunham investigated "whether the legalizing of personal use of marijuana has had the predicted effects - or any effects - on Alaskans."  What Mr. Dunham discovered serves as rock-solid proof that no compelling state interest would be thwarted by allowing Defendant GUERRERO and the small population of Rastafarians to engage in a religious possession and use of marijuana:

There have been no increases in automobile deaths or
aircraft accident since Ravin; in fact, those rates are stable
or declining.

There have been no unexplained epidemics of infectious
diseases, birth defects, or infant deaths.

Alaska's crime rate - ferociously high since the arrival of the
first immigrants - is growing at a much slower pace than it
did prior to the decision and currently reflects the national
norms more closely than at any time since such statistics
were first gathered.

SAT scores for Alaskan students are the highest in the
nation.

No measurable social problem has resulted from allowing
adults the freedom to use marijuana.

As Mr. Dunham aptly stated, the Ravin decision allowed Alaska to become a "sort of laboratory" in which the legalization of adult marijuana usage could be tested.  And, as we can see, the tests came out negative.  Negative for crime, negative for increased traffic accidents, negative for damages to health, and negative for harm to the academic achievements of Alaska's youth.  In short, Alaska tested negative as to the existence of a compelling state interest in forbidding private, adult use of marijuana.

THE RELIGIOUS FREEDOM RESTORATION ACT OF 1993 MANDATES THAT DEFENDANT BE PERMITTED TO USE MARIJUANA IN THE PRACTICE OF HIS RELIGION OR, ALTERNATIVELY, AT THE MINIMUM, REQUIRES THE GOVERNMENT TO MAKE A PROPER SHOWING OF THE NECESSITY OF SUCH A LAW.

        As previously mentioned, the RFRA of 1993 still applies to federal agencies and instrumentalities.  The Ninth Circuit has clearly stated that Guam is an instrumentality of the federal government.   Therefore, the RFRA still applies to Guam.  The purpose of the act was to restore the compelling interest test as set forth in Sherbert v. Verner, supra, and to "guaranty its application in all cases where free exercise of religion is substantially burdened."  RFRA Section 2(b)(1).  Moreover, the RFRA specifically provides a "defense to persons whose religious exercise is substantially burdened by government."  Id. at Section 2(b)(2).

Therefore, the RFRA is simply a federal codification of the test previously discussed in Sherbert v. Verner, supra.

        The RFRA applies to any "branch, department, agency, instrumentality, and official (or other persons acting under color of law) of the United States Section 5(1).

        Not only does the RFRA still apply to Guam, but the Ninth Circuit has specifically held that the statute permits a defendant to raise it as a defense in a criminal prosecution, where applicable, and, permits a defendant to hire an expert witness for use in his defense preparation. United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996).  Although the RFRA was subsequently ruled unconstitutional as it applies to the States, the Bauer decision is still relevant to determine how the Ninth Circuit would review the statute's use in a criminal prosecution in Guam.  The court ruled that under the RFRA that:

Moreover, the Ninth Circuit held that in light of the Ninth
Circuit's decision regarding the RFRA, that the trial court, will
have to determine, in light of our holding whether a
reasonable attorney would engage the services of a theology
expert for [defendants] if she had the independent financial
means to pay for them.

        Having satisfied the first of the two steps required by Woody, we can now consider the second argument against allowing this religious use exemption for marijuana - the "potential infringement such practice would place upon the enforcement of the ... laws because of the difficulty of detecting fraudulent claims of an asserted religious use."  Woody, 40 Cal.Rptr. at 74.

[W]e impose no undue burden upon the trier of fact.  We do
not doubt the capacity of judge and jury to distinguish
between those who would feign faith in an esoteric religion
and those who would honestly follow it.  ... Courts reached
such factual determinations in a host of related
circumstances ... the problems of enforcement here do not
inherently differ from those of other situations which call for
the detection of fraud.

        Defendant GUERRERO respectfully submits that there is no factual dispute over his bona fide belief in the Rastafarian religion.  However, in the unlikely event that the Government questions the honesty of Defendant GUERRERO's beliefs, the Court should nevertheless declare that Rastafarians have the religious right to smoke marijuana, and then determine in a factual hearing whether Defendant GUERRERO is a member of the Rastafarian religion.

        Defendant GUERRERO is a priest of the Rastafarian religion, and has been charged with importation of marijuana in violation of 9 G.C.A. Sections 67.23(d)(10), 67.89(1), and 80.33.7 as amended.  The application of these statutes impinges on Defendant GUERRERO's right to free exercise of religion guaranteed by the U.S. Constitution, the Guam Organic Act, the Treaty of Peace between the U.S. and Spain and the RFRA.

        The Guam Organic Act, the Treaty of Peace between the United States and Spain, the United States Constitution and the RFRA together secure the right to free exercise of religion.  Defendant GUERRERO is a deeply religious man, and marijuana is a necessary sacrament for the exercise of his religion.  Guam statutes 9 G.C.A. Sections 67.23(d)(10), 67.89(1), and 80.33.7, which criminalize the importation of marijuana, impinge upon Defendant GUERRERO's constitutional rights because they force him to choose between his religion and his liberty.  The Guam statutes are challenged by the RFRA because of Guam's status as an instrumentality of the federal government.  Through the RFRA, Defendant GUERRERO should be allowed to practice his religion without being penalized because there is no compelling government interest and likewise, no measured means of instilling that interest.  The small population of Rastafarians on Guam pose no compelling threat to the island of Guam, especially according to the nature of marijuana and its mild effects compared to alcohol or tobacco.  Therefore, the continued prosecution of Defendant GUERRERO for importing marijuana violates the U.S. Constitution, the Guam Organic Act, the Treaty of Peace between the United States and Spain and RFRA.

        VERNIER & MAHER, LLP
        Attorneys for Defendant
        BENNY T. GUERRERO

By:   _______________________
        D. PAUL VERNIER, JR.