United States v. Meyers

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 9/6/96
FOR THE TENTH CIRCUIT
______

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 95-8079
)
DAVID MEYERS, )
)
Defendant-Appellant. )
______

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 95-CR-58)
______

David A. Kubichek (David D. Freudenthal, United States Attorney,
Cheyenne, Wyoming, Patrick J. Crank, Assistant United States
Attorney, with him on the briefs), Casper, Wyoming, for appellee.

Thomas B. Jubin, Cheyenne, Wyoming, for appellant.
______

Before BALDOCK, BARRETT, and BRORBY, Circuit Judges.
______

BARRETT, Senior Circuit Judge.
______

David Meyers (Meyers) appeals from his conviction and sentence

entered following a jury trial wherein he was found guilty of

conspiracy to possess with intent to distribute and to distribute
marijuana, in violation of 21 U.S.C. § 846 (Count I), and aiding

and abetting possession with intent to distribute marijuana, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. §

2 (Count II).

Facts

On August 24, 1994, Carl Jones (Jones) purchased four pounds

of marijuana from Mitchell Meyers in Tucson, Arizona, which had

been arranged by Meyers and coconspirator, Scott Recore (Recore).

Jones mailed the marijuana to himself in Casper, Wyoming, in an

attempt to avoid discovery. The attempt failed and the marijuana

was discovered.

Jones ultimately decided to cooperate and in a series of

statements described a marijuana conspiracy allegedly involving

himself, Meyers, Richard Federico (Federico) and Mitchell Meyers.

Jones’ statements provided the basis for Wyoming Division of

Criminal Investigation Special Agent Steve Freel’s (Agent Freel)

testimony and evidence presented to the grand jury. Agent Freel

testified to the grand jury that Jones was involved in storing and

packaging marijuana in various quantities for Meyers between

January and August, 1994, in exchange for payment in the form of

one-quarter of a pound of marijuana; it was Meyers who advised

Jones and inspected the packages; and Jones made four trips for

Meyers and brought back between five and seven pound of marijuana

each trip.

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 On May 19, 1995, Meyers was indicted by a grand jury on Count

I and Count II. On August 11, 1995, Meyers pled not guilty and

trial was set for October 2, 1995.

Just prior to trial, the government discovered that Jones had

lied to investigating officers in his initial statements by

omitting Recore’s middleman role in the conspiracy and by stating

that he dealt directly with Meyers when in fact he dealt primarily

with Recore. Jones allegedly lied pursuant to an agreement between

Meyers, Recore, and himself which provided that if caught Recore

and Jones would intentionally blame Meyers for the entire

conspiracy so that Meyers could “try out” his religious freedom

defense.

At trial, Jones testified that from January to July, 1994, he

would receive between five and seven pounds of marijuana from

Recore every seven to ten days; in July, 1994, he traveled to El

Paso, Texas, to obtain marijuana from Federico at the direction of

Recore, who was acting at the direction of Meyers; and at the end

of August, 1994, he traveled to Tucson, Arizona, to meet with

Meyers’ cousin, Mitchell Meyers, and obtain four pounds of

marijuana. Recore testified that he was receiving all the

marijuana he distributed to Jones from Meyers and that he was

acting at Meyers’ direction by delivering the marijuana to Jones.

Before trial, Meyers filed numerous motions including motions

to dismiss based on religious freedom under the First Amendment and

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the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et. seq.

(RFRA). At the hearing on Meyers’ religious freedom defense,

Meyers testified that he is the founder and Reverend of the Church

of Marijuana and that it is his sincere belief that his religion

commands him to use, possess, grow and distribute marijuana for the

good of mankind and the planet earth.

After a careful and thorough analysis, the district court

concluded that the neutral drug laws at issue were not subject to

a First Amendment free exercise challenge and that Meyers’ beliefs

did not constitute a religion for purposes of the RFRA. United

States v. Meyers, 906 F. Supp. 1494, 1509 (D. Wyo. 1995).

Therefore, the court denied his motion to raise a RFRA defense.1

The jury found Meyers guilty on both counts and he was

sentenced to thirty-three months imprisonment, three years

supervised release, and assessed $100.

Issues

On appeal, Meyers contends that: (1) the district court erred

in prohibiting his religious freedom defense; (2) the indictment

was legally insufficient; (3) the indictment was improperly amended

by the proof at trial; (4) he was denied due process by the

government’s failure to timely inform him or the court of the

1
The district court denied Meyers’ motion before trial
at the hearing on October 2, 1995. (ROA, Vol. III at 68-70).
However, the district court’s written Order was filed on November
14, 1995. United States v. Meyers, 906 F. Supp. 1494 (D. Wyo.
1995).

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infirmity in the testimony presented to the grand jury; (5) the

district court erred in failing to award him a two point reduction

in his offense level for acceptance of responsibility; (6) the

district court erred in its calculation of the marijuana quantities

attributable to him; and (7) the district court erred in failing to

timely address the issues of pre-trial release and post-conviction

release pending appeal.

Discussion

I. Religious Freedom Defense

Meyers contends that the district court erred in failing to

balance his interests in his religion with governmental interests

as required by the First Amendment and the RFRA; in refusing to

recognize his interpretation of his own religion; and in refusing

to give his beliefs the status of religion.

A. Free Exercise Clause

Meyers asserts that as the Reverend of the Church of Marijuana

it is his sincere belief that his religion commands him to use,

possess, and distribute marijuana for the benefit of mankind and

the planet earth and that 21 U.S.C. §§ 841 and 846 and 18 U.S.C. §

2, which prohibit this religiously motivated conduct, unduly

burden his constitutional right to free exercise of religion.

Meyers maintains that in order to substantially burden religiously

motivated conduct, the government must demonstrate a compelling

state interest and use means narrowly tailored to achieve that

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interest.

The Free Exercise Clause of the First Amendment guarantees

that, “Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof . . ..” U.S.

Const. amend. I. In Cantwell v. Connecticut, 310 U.S. 296, 303-04

(1940), the Court recognized that there are two aspects of the free

exercise of religion: freedom to believe and freedom to act.

On the one hand, it forestalls compulsion by law of the
acceptance of any creed or the practice of any form of
worship. Freedom of conscience and freedom to adhere to
such religious organization or form of worship as the
individual may choose cannot be restricted by law. On
the other hand, it safeguards the free exercise of the
chosen form of religion. Thus the Amendment embraces two
concepts,-- freedom to believe and freedom to act.

Id. at 303.

While the freedom to believe and profess whatever religious

doctrines one desires is absolute, the freedom to act cannot be.

Id. at 303-04. “Conduct remains subject to regulation for the

protection of society. The freedom to act must have appropriate

definition to preserve the enforcement of that protection.” Id. at

304.

In Employment Div., Dep’t of Human Resources of Or., v. Smith,

494 U.S. 872 (1990), the Court held that the right to free exercise

of religion does not relieve an individual of the obligation to

comply with a valid and neutral law of general applicability on the

ground that the law proscribes (or prescribes) conduct that his

religion prescribes (or proscribes), nor does a generally

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applicable criminal prohibition on a particular form of conduct

that substantially burdens a religious practice have to be

justified by a “compelling governmental interest.” (citing United

States v. Lee, 455 U.S. 252, 263 n.3 (1982)). In Smith,

respondents argued that “their religious motivation for using

peyote place[d] them beyond the reach of a criminal law that [was]

not specifically directed at their religious practice and that

[was] concededly constitutional as applied to those who use the

drug for other reasons.” 494 U.S. at 878. The respondents further

argued “that even though exemption from generally applicable

criminal laws need not automatically be extended to religiously

motivated actors, at least the claim for a religious exemption must

be evaluated under the balancing test set forth in Sherbert v.

Verner, 374 U.S. 398 (1963),” where governmental actions that

substantially burden a religious practice must be justified by a

compelling governmental interest. Smith, 494 U.S. at 882-83.

In reaching its decision, the Court stated that “[w]e have

never held that an individual’s religious beliefs excuse him from

compliance with an otherwise valid law prohibiting conduct that the

State is free to regulate.” Id. at 878-79. The Court pointed out

that “[t]he only decisions in which [it has] held that the First

Amendment bars application of a neutral, generally applicable law

to religiously motivated action have involved not the Free Exercise

Clause alone, but the Free Exercise Clause in conjunction with

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other constitutional protections.” Id. at 881 (citations omitted).

In addition, the Court specifically rejected the respondents

contention that a neutral law of general applicability that burdens

a religious practice must be justified by a compelling governmental

interest. The Court held that:

The government’s ability to enforce generally applicable
prohibitions of socially harmful conduct, like its
ability to carry out other aspects of public policy,
“cannot depend on measuring the effects of a governmental
action on a religious objector’s spiritual development.”
Lyng [v. Northwest Indian Cemetery Protective Assn., 485
U.S. 439, 451 (1988)]. To make an individual’s
obligation to obey such a law contingent upon the law’s
coincidence with his religious beliefs, except where the
State’s interest is “compelling--permitting him, by
virtue of his beliefs, “to become a law unto himself,”
Reynolds v. United States, 98 U.S. [145], 167 [1878]--
contradicts both constitutional traditions and common
sense.

Id. at 885 (footnote omitted).

In our case, Meyers’ challenge to his convictions under the

Free Exercise Clause must fail. First, as in Smith, Meyers

challenges the application of valid and neutral laws of general

applicability on the grounds that they prohibit conduct that is

required by his religion. Therefore, we hold that Meyers’

challenge fails for the same reasons as the respondents challenge

in Smith failed, i.e., the right to free exercise of religion under

the Free Exercise Clause of the First Amendment does not relieve an

individual of the obligation to comply with a valid and neutral law

of general applicability on the ground that the law incidentally

affects religious practice. Second, we hold that when, as here,

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the challenge is to a valid neutral law of general applicability,

the law need not be justified by a compelling governmental

interest. See Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 521 (1993).

B. RFRA

Meyers argues that the district court erred in refusing to

recognize his interpretation of his own religion and in refusing to

give his beliefs the status of religion under the RFRA.

In response to the Court’s rejection of the compelling

governmental interest test in Smith, Congress passed the RFRA re-

establishing the compelling interest test of Sherbert, 374 U.S.

398, and Wisconsin v. Yoder, 406 U.S. 205 (1972), as the analytical

framework governing all cases where free exercise of religion is

substantially burdened. 42 U.S.C. § 2000bb(b)(1).

The RFRA provides that “[g]overnment shall not substantially

burden a person’s exercise of religion even if the burden results

from a rule of general applicability, except as provided in

subsection (b) of this section.” § 2000bb-1(a). Subsection (b)

provides that:

Government may substantially burden a person’s
exercise of religion only if it 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(b).

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 Under the RFRA, a plaintiff must establish, by a preponderance

of the evidence, three threshold requirements to state a prima

facie free exercise claim. Thiry v. Carlson, 78 F.3d 1491, 1494

(10th Cir. 1996). The governmental action must (1) substantially

burden, (2) a religious belief rather than a philosophy or way of

life, (3) which belief is sincerely held by the plaintiff. Id.

The government need only accommodate the exercise of actual

religious convictions. Werner v. McCotter, 49 F.3d 1476, 1479 n.1

(10th Cir.) (citing Yoder, 406 U.S. at 215-19; Thomas v. Review

Bd., 450 U.S. 707, 713-18 (1981)), cert. denied, ___ U.S. ___, 115

s. Ct. 2625 (1995). Once the plaintiff has established the

threshold requirements by a preponderance of the evidence, the

burden shifts to the government to demonstrate that the challenged

regulation furthers a compelling state interest in the least

restrictive manner. Werner, 49 F.3d at 1480 n.2 (citing 42 U.S.C.

§ 2000bb-1(b)).

Our review of the requirements, although largely factual in

nature, presents mixed questions of fact and law. Thiry, 78 F.3d

at 1495. We review the meaning of the RFRA de novo, including the

definitions as to what constitutes substantial burden and what

constitutes religious belief, and the ultimate determination as to

whether the RFRA has been violated. Id. Sincerity is a factual

matter and, as with historical and other underlying factual

determinations, we defer to the district court’s findings,

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reversing only if those findings are clearly erroneous. Id.

There is no dispute that Meyers’ beliefs are sincerely held

and that they are substantially burdened by 21 U.S.C. §§ 841 and

846 and 18 U.S.C. § 2. The issue is whether his sincerely held

beliefs are “religious beliefs,” rather than a philosophy or way of

life. In analyzing this issue, the district court examined the

cases that have delved into the question of “what is religion” and

catalogued the many factors used to determine whether a set of

beliefs is religious in nature.2 Meyers, 906 F. Supp. at 1501.

The court then used its list of factors to examine Meyers’ beliefs

to determine if his beliefs fit the factors sufficiently to be

included in the realm of “religious beliefs.”

Keeping in mind that the threshold for establishing the

2
The district court “gleaned” many of these factors from
the following cases: Africa v. Commonwealth of Pa., 662 F.2d 1025
(3rd Cir. 1981), cert. denied, 456 U.S. 908 (1982); Malnak v.
Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Sun Myung
Moon, 718 F.2d 1210 (2nd Cir. 1983), cert. denied, 466 U.S. 971
(1984); Founding Church of Scientology of Washington, D.C. v.
United States, 409 F.2d 1146 (D. C. Cir.), cert. denied, 396 U.S.
963 (1969); Washington Ethical Soc’y v. District of Columbia, 249
F.2d 127 (D.C. Cir. 1957); United States v. Kauten, 133 F.2d 703
(2nd Cir. 1943); Sherr v. Northport-East Northport Union Free
Sch. Dist., 672 F. Supp. 81 (E.D.N.Y. 1987); Jacques v. Hilton,
569 F. Supp. 730 (D.N.J. 1983), aff’d, 738 F.2d 422 (3rd Cir.
1984); Church of the Chosen People v. United States, 548 F. Supp.
1247 (D. Minn. 1982); Womens Services, P.C. v. Thone, 483 F.
Supp. 1022 (D. Neb. 1979), aff’d, 636 F.2d 206 (8th Cir. 1980),
vacated, 452 U.S. 911 (1981); Stevens v. Berger, 428 F. Supp. 896
(E.D.N.Y. 1977); Remmers v. Brewer, 361 F. Supp. 537 (S.D. Iowa
1973), aff’d, 494 F.2d 1277, cert. denied, 419 U.S. 1012 (1974);
United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968); Fellowship
of Humanity v. Alameda County, 315 P.2d 394 (Cal. Ct. App. 1957).

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religious nature of his beliefs is low, the court considered the

following factors:

1. Ultimate Ideas: Religious beliefs often address
fundamental questions about life, purpose, and death. As
one court has put it, “a religion addresses fundamental
and ultimate questions having to do with deep and
imponderable matters.” Africa, 662 F.2d at 1032. These
matters may include existential matters, such as man’s
sense of being; teleological matters, such as man’s
purpose in life; and cosmological matters, such as man’s
place in the universe.

2. Metaphysical Beliefs: Religious beliefs often are
“metaphysical,” that is, they address a reality which
transcends the physical and immediately apparent world.
Adherents to many religions believe that there is another
dimension, place, mode, or temporality, and they often
believe that these places are inhabited by spirits,
souls, forces, deities, and other sorts of inchoate or
intangible entities.

3. Moral or Ethical System: Religious beliefs often
prescribe a particular manner of acting, or way of life,
that is “moral” or “ethical.” In other words, these
beliefs often describe certain acts in normative terms,
such as “right and wrong,” “good and evil,” or “just and
unjust.” The beliefs then proscribe those acts that are
“wrong,” “evil,” or “unjust.” A moral or ethical belief
structure also may create duties -- duties often imposed
by some higher power, force, or spirit -- that require
the believer to abnegate elemental self-interest.

4. Comprehensiveness of Beliefs: Another hallmark of
“religious” ideas is that they are comprehensive. More
often than not, such beliefs provide a telos, an
overreaching array of beliefs that coalesce to provide
the believer with answers to many, if not most, of the
problems and concerns that confront humans. In other
words, religious beliefs generally are not confined to
one question or a single teaching. Africa, 662 F.2d at
1035.

5. Accoutrements of Religion: By analogy to many of the
established or recognized religions, the presence of the
following external signs may indicate that a particular
set of beliefs is “religious”:

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 a. Founder, Prophet, or Teacher: Many religions
have been wholly founded or significantly influenced by
a deity, teacher, seer, or prophet who is considered to
be divine, enlightened, gifted, or blessed.

b. Important Writings: Most religions embrace
seminal, elemental, fundamental, or sacred writings.
These writing often include creeds, tenets, precepts,
parables, commandments, prayers, scriptures, catechisms,
chants, rites, or mantras.

c. Gathering Places: Many religions designate
particular structures or places as sacred, holy, or
significant. These sites often serve as gathering places
for believers. They include physical structures, such as
churches, mosques, temples, pyramids, synagogues, or
shrines; and natural places, such as springs, rivers,
forests, plains, or mountains.

d. Keepers of Knowledge: Most religions have
clergy, ministers, priests, reverends, monks, shamans,
teachers, or sages. By virtue of their enlightenment,
experience, education, or training, these people are
keepers and purveyors of religious knowledge.

e. Ceremonies and Rituals: Most religions include
some form of ceremony, ritual, liturgy, sacrament, or
protocol. These acts, statements, and movements are
prescribed by the religion and are imbued with
transcendent significance.

f. Structure or Organization: Many religions have
a congregation or group of believers who are led,
supervised, or counseled by a hierarchy of teachers,
clergy, sages, priests, etc.

g. Holidays: As is etymologically evident, many
religions celebrate, observe, or mark “holy,” sacred, or
important days, weeks, or months.

h. Diet or Fasting: Religions often prescribe or
prohibit the eating of certain foods and the drinking of
certain liquids on particular days or during particular
times.

I. Appearance and Clothing: Some religions
prescribe the manner in which believers should maintain
their physical appearance, and other religions prescribe

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 the type of clothing that believers should wear.

j. Propagation: Most religious groups, thinking
that they have something worthwhile or essential to offer
non-believers, attempt to propagate their views and
persuade others of their correctness. This is sometimes
called “mission work,” “witnessing,” “converting,” or
proselytizing.

Meyers, 906 F. Supp. at 1502-03 (footnotes omitted).

The district court emphasized that “it cannot rely solely on

established or recognized religions to guide it in determining

whether a new and unique set of beliefs warrants inclusion” and

that “no one of these factors is dispositive, and that the factors

should be seen as criteria that, if minimally satisfied, counsel

the inclusion of beliefs within the term ‘religion.’” Id. at 1503.

However, in accord with Yoder, the court noted that “[p]urely

personal, political, ideological, or secular beliefs probably would

not satisfy enough criteria for inclusion.” Id. at 1504. See

Yoder, 406 U.S. at 216 (philosophical and personal beliefs are

secular beliefs); Africa, 662 F.2d at 1036 (finding beliefs are

secular not religious); Berman, 156 F.2d at 380-81 (beliefs which

are moral and social are not religious); Church of the Chosen

People, 548 F. Supp. at 1253 (beliefs which are sexual and secular

are not religious).

After carefully examining Meyers’ beliefs derived from his

testimony, the district court concluded that his beliefs were

secular and, thus, did not constitute a “religion” for RFRA

purposes. Meyers, 906 F. Supp. at 1509. The court concluded that:

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 Marijuana’s medical, therapeutic, and social effects
are secular, not religious. . . . Here, the Court cannot
give Meyers’ “religious” beliefs much weight because
those beliefs appear to be derived entirely from his
secular beliefs. In other words, Meyers’ secular and
religious beliefs overlap only in the sense that Meyers
holds secular beliefs which he believes so deeply that he
has transformed them into a “religion.”

While Meyers may sincerely believe that his beliefs
are religious, this Court cannot rely on his sincerity to
conclude that his beliefs rise to the level of a
“religion” and therefore trigger RFRA’s protections.
Meyers is, of course, absolutely free to think or believe
what he wants. If he thinks that his beliefs are a
religion, then so be it. No one can restrict his
beliefs, and no one should begrudge him those beliefs.
None of this, however, changes the fact that his beliefs
do not constitute a “religion” as that term is uneasily
defined by law. Were the Court to recognize Meyers’
beliefs as religious, it might soon find itself on a
slippery slope where anyone who was cured of an ailment
by a “medicine” that had pleasant side-effects could
claim that they had founded a constitutionally or
statutorily protected religion based on the beneficial
“medicine.”

Id. at 1508. Finally, the court noted that “Meyers’ professed

beliefs have an ad hoc quality that neatly justify his desire to

smoke marijuana.” Id. at 1509.

We agree with the district court. Under the district court’s

thorough analysis of the indicia of religion, which we adopt, we

hold that Meyers’ beliefs more accurately espouse a philosophy

and/or way of life rather than a “religion.” The district court

did not err in prohibiting Meyers’ religious freedom defense.

II. Sufficiency of Indictment

Meyers declares that the district court erred in failing to

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grant his motion to dismiss the indictment on the grounds that it

was legally insufficient. Meyers reasons that Agent Freel’s

testimony was insufficient to support the indictment because it

consisted almost entirely of a hearsay recitation of false

statements made by Jones and that with the deletion of this false

information from the indictment, there is insufficient evidence to

form the basis of the indictment. We review the sufficiency of an

indictment de novo. United States v. Bolton, 68 F.3d 396, 400

(10th cir. 1995), cert. denied, ___ U.S. ___ (1996).

As a preliminary matter, “the validity of the indictment is

not affected by the character of the evidence considered.” United

States v. Calandra, 414 U.S. 338, 344-45 (1974).

If indictments were to be held open to challenges on
the ground that there was inadequate or incompetent
evidence before the grand jury, the resulting delay would
be great indeed. The result of such a rule would be that
before trial on the merits a defendant could always
insist on a kind of preliminary trial to determine the
competency and adequacy of the evidence before the grand
jury. This is not required by the Fifth Amendment. An
indictment returned by a legally constituted and unbiased
grand jury, like an information drawn by a prosecutor, if
valid on its face, is enough to call for trial of the
charge on the merits. The Fifth Amendment requires
nothing more.

Costello v. United States, 350 U.S. 359, 363 (1956) (footnotes

omitted). Therefore, we are concerned only with whether an

indictment meets the minimal constitutional standards which we

determine by practical rather than technical considerations.

Bolton, 68 F.3d at 400; United States v. Dahlman, 13 F.3d 1391,

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1400 (10th Cir. 1993), cert. denied, ___ U.S. ___ (1994).

Generally, an indictment is sufficient “‘if it contains the

elements of the offense charged, putting the defendant on fair

notice of the charge against which he must defend, and if it

enables a defendant to assert an acquittal or conviction in order

to prevent being placed in jeopardy twice for the same offense.’”

Bolton, 68 F.3d at 400 (quoting United States v. Staggs, 881 F.2d

1527, 1530 (10th Cir. 1989), cert. denied, 493 U.S. 1020 (1990)).

In this case, the indictment adequately informed Meyers of the

charges against him; therefore, we hold it was valid on its face

and cannot be attacked further. Notably, because conspiracy does

not require the government to establish any overt acts, Meyers’

contention that the overt acts alleged in the indictment were false

is irrelevant. See United States v. Johnson, 42 F.3d 1312, 1319

(10th Cir. 1994) (“Under the drug conspiracy statute, the

government need not prove the commission of any overt act in

furtherance of the conspiracy.”) (citing United States v. Shabani,

115 S. Ct. 382, 385 (1994)).

III. Improper Amendment of Indictment

Meyers contends that the district court erred in denying his

motion to dismiss on the grounds that the indictment was improperly

amended by the proof at trial. Meyers asserts that the government

presented facts at trial which were materially and substantially

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different from the facts presented to the grand jury and that this

variance is reversible error.

A variance arises when the evidence presented at trial

establishes facts which are different from those alleged in the

indictment. Dunn v. United States, 442 U.S. 100, 105 (1979);

United States v. Powell, 982 F.2d 1422, 1431 (10th Cir. 1992),

cert. denied, 507 U.S. 946 (1993). However, no variance occurs

when the government’s theory on which the case was tried is the

same as that charged in the indictment. Dunn, 442 U.S. at 106.

Moreover, even if a variance exists, we will not reverse unless the

variance affects the defendant’s substantial rights. Powell, 982

F.2d at 1431; United States v. Harrison, 942 F.2d 751, 759 (10th

Cir. 1991) (“variance did not affect defendant’s right to a fair

trial”).

Here, the indictment charged that:

On or about between January, 1994, through and
including November, 1994, in the District of Wyoming and
elsewhere, DAVID MEYERS, MITCHELL MEYERS, and RICHARD
FEDERICO, Defendants herein, and Carl Jones, did
intentionally, knowingly, and unlawfully combine,
conspire, confederate, and agree together, and with other
persons, both known and unknown to the Grand Jury, to
possess with the intent to distribute, and to distribute,
marijuana, a Schedule I controlled substance, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

(ROA, Vol. I, Tab 1 at 1-2). The indictment further alleged that

marijuana was obtained from Arizona, Texas, and New Mexico, from

Mitchell Meyers, Federico, and others at the direction of Meyers

for distribution by him, id. at 2; Meyers would either personally

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transport the marijuana or arrange for others to do so, id.; and

Meyers introduced Jones, or made arrangements for the introduction,

to Meyers’ sources of marijuana with the intent that Jones begin

transporting marijuana for him. Id. at 3.

This is the same theory on which the case was tried and

submitted to the jury. Therefore, we hold that there was no

variance between the charging indictment and the evidence

established at trial. The fact that the government presented

additional evidence of the existence of a middleman in the

conspiracy, Recore, who was unknown to the grand jury, is

immaterial.

In addition, Meyers has failed to assert how any alleged

variance affected a substantial right. In fact, he could not do so

since he was aware at all times of the existence of Recore and

Recore’s role in the alleged conspiracy. Therefore, he could not

be prejudiced or denied a fair trial merely because the government

uncovered another member of the conspiracy who agreed to cooperate.

IV. Due Process

Meyers contends that he was denied due process by the

government’s failure to timely inform him and the court of the fact

that Jones’ pre-trial statements, which were presented to the grand

jury through Agent Freel’s testimony, were false. Meyers asserts

that where an indictment is obtained by false testimony to the

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grand jury, due process requires the government to immediately

inform the court and opposing counsel and, if the “perjury” is

material, to inform the grand jury. Meyers maintains that the

proper remedy is to dismiss the indictment.

In order to prevail on a due process claim, a defendant must

show actual prejudice. A due process violation “require[s] a

specific showing of identifiable prejudice of the accused affecting

his substantial rights.” United States v. Comosona, 614 F.2d 695,

697 n.3 (10th Cir. 1980) (citations omitted).

It is undisputed that although the indictment contained false

statements based on Jones’ false representations to Agent Freel,

there was no actual perjury committed and the government did not

know the statements were false at the time they were presented to

the grand jury. Therefore, this is clearly not a case involving

any type of prosecutorial misconduct, abuse, bad faith, or

vindictiveness.

Additionally, Meyers has failed to show how he was prejudiced

as a result of this infirmity. Indeed, it is hard to imagine how

Meyers could be prejudiced by any alleged failure of the government

to inform him of Jones’ false statement inasmuch as Jones’ false

statement concerned Meyers’ actions. Meyers should know what he

did and did not do in the course of the conspiracy. In fact, if

Recore’s trial testimony is to be believed, then it is Meyers who

is to blame for the inaccurate testimony presented to the grand

- 20 -
jury, because it was he who told Jones to implicate him as the main

conspirator. See (ROA, Vol. IV at 369). Therefore, we hold that

Meyers was not denied due process and that the extraordinary remedy

of dismissing the indictment shall not be imposed here.

V. Acceptance of Responsibility

Meyers contends that the district court erred in failing to

award him a two point reduction in his offense level for acceptance

of responsibility under U.S.S.G. § 3E1.1(a). Meyers states that he

is entitled to a two point reduction in his offense level based on

his pre-trial statements “clearly demonstrating a recognition and

affirmative acceptance of personal responsibility for his criminal

conduct.”

To receive such a reduction, the defendant must prove by a

preponderance of the evidence that he has clearly demonstrated

acceptance of responsibility for his offense. United States v.

Ivy, 83 F.3d 1266, 1292 (10th Cir. 1996). “Whether the defendant

has clearly demonstrated acceptance of responsibility is a factual

question we review only for clear error.” Id. See United States

v. Robertson, 45 F.3d 1423 (10th Cir.), cert. denied, ___ U.S. ___

(1995). In so doing, “we remain mindful that ‘[t]he sentencing

judge is in a unique position to evaluate a defendant’s acceptance

of responsibility. For this reason the determination of the

sentencing judge is entitled to great deference on review.’” Ivy,

- 21 -
83 F.3d at 1292-93.

In general, pleading not guilty and requiring the government

to prove guilt at trial demonstrates denial of responsibility,

regardless of how easily the government can prove guilt. United

States v. Portillo-Valenzuela, 20 F.3d 393, 394-95 (10th Cir.),

cert. denied, ___ U.S. ___ (1994). However, in “rare situations,”

a defendant may deserve the reduction for acceptance of

responsibility even though he goes to trial. Id. at 394; U.S.S.G.

3E1.1 note 2.

Based on our review, we hold that this is not one of those

“rare situations.” Meyers’ pre-trial testimony at the hearing

regarding his religious freedom defense did not rise to the level

of an acceptance of responsibility for the criminal conduct charged

in the indictment. Although he admitted that he used marijuana and

distributed it to others as part of the Church of Marijuana, he

specifically denied distributing marijuana to Jones and he refused

to answer other questions specifically relating to the charges in

the indictment. (ROA, Vol. III at 54). In fact, Meyers testified

that he actively tried to discourage Jones from trafficking in

marijuana. Id. at 62, 64, and 65. Therefore, the government had

to prove guilt at trial and, in essence, specifically disprove

Meyers’ statements. Accordingly, the district court did not err in

denying Meyers a two point reduction in his offense level for

- 22 -
acceptance of responsibility.3

VI. Quantity of Marijuana

Meyers maintains that the district court erred in calculating

the quantity of marijuana attributable to him. He asserts that

the district court erred by including ten pounds of marijuana

related to Connie Griffis, by double counting three pounds of

marijuana involved in a transaction on July 19, 1994, and by over

counting three pounds of marijuana from Federico’s testimony.

The government has the burden of proving the quantity of

marijuana for sentencing purposes by a preponderance of the

evidence. United States v. Garcia, 994 F.2d 1499, 1508 (10th Cir.

1993); United States v. Ortiz, 993 F.2d 204, 207 (10th Cir. 1993).

”We review this determination under a clearly erroneous standard,

and we will not disturb it unless it has no support in the record,

or unless after reviewing all the evidence we are firmly convinced

that an error has been made.” United States v. Cook, 949 F.2d 289,

296 (10th Cir. 1991).

The district court found that Meyers’ relevant conduct in the

conspiracy involved 83 pounds of marijuana or 38 kilograms;

3
The government asserts that Meyers was offered a
conditional plea that would have preserved his right to pursue
any legal issues he wished under the RFRA. This would also
supports our conclusion that the district court’s denial of a
reduction in offense level for acceptance of responsibility was
not error; however, we cannot find any evidence in the record to
support the government’s assertion.

- 23 -
therefore his base offense level was 18. If we accept Meyers’

assertions as true his relevant conduct would be 67 pounds or 30

kilograms. Under U.S.S.G. § 2D1.1(c) 20 kilograms (44 pounds) to

40 kilograms (88 pounds) of marijuana correlates to a base offense

level of 18.4 Therefore, Meyers’ base offense level under his own

calculations would also be 18. Thus, this issue is without merit.

VII. Bail and Release

Meyers contends that the district court erred in failing to

address his motions for pretrial release, in denying him pretrial

release, and in failing to address his motion for post-conviction

release pending appeal.

On May 19, 1995, and on June 2, 1995, the government filed a

Motion for a Detention Hearing and invoked the rebuttable

presumption under 18 U.S.C. § 3142(e) that no conditions of release

will assure defendant’s appearance and the safety of the community.

On July 10, 1995, Meyers was arrested in Colorado apparently on the

warrant issued in Wyoming on May 19, 1995. On July 11, 1995,

Meyers appeared before Colorado Magistrate Judge O. Edward

Schlatter and was remanded to the custody of the United States

Marshall. On July 14, 1995, Meyers’ waived his right to an

identity hearing with no right to a preliminary hearing. At the

4
Under the measurement conversion table provided, one
pound of marijuana equals 0.4536 kilograms. U.S.S.G. § 2D1.1
Application Note 10.

- 24 -
same time, Colorado Magistrate Judge Richard M. Borcher found that

Meyers was a danger to the community and ordered that he be

detained and transferred to the charging district, Wyoming.

Meyers was arraigned in the District Court for the District of

Wyoming on August 11, 1995. The minutes of the arraignment reflect

that a motion for bond was to be filed and heard at a later date;

however, no date was set. On August 14, 1995, Meyers filed a

Motion for Pretrial Release and on September 12, 1995, Meyers filed

a Second Motion for Pretrial Release.

Trial commenced October 2, 1995, and the jury returned a

verdict of guilty on both counts on October 5, 1995. That

afternoon, the district court held a hearing on Meyers’ outstanding

motions for pretrial release. The district court denied the

motions on the grounds that Meyers’ has a history of failing to

appear and that he was a flight risk especially since he had

already been convicted. (ROA, Supp. Vol. I at 8 & 12).

On December 1, 1995, Meyers was sentenced to 33 months

imprisonment and three years of supervised release. On December

12, 1995, Meyers filed a notice of appeal and, simultaneously, a

motion for release pending appeal. There has been no ruling on

Meyers’ December 12, 1995, motion for release by either the

district court or this court.

A. Pretrial Release

Under 18 U.S.C. § 3142(f)(1)(C), the judicial officer shall

- 25 -
hold a detention hearing upon motion by the government in a case

that involves an offense for which a maximum term of imprisonment

of ten years or more is prescribed in the Controlled Substances

Act, 21 U.S.C. §§ 801 et. seq. “The hearing shall be held

immediately upon the person’s first appearance before the judicial

officer unless that person, or the attorney for the Government,

seeks a continuance.” 21 U.S.C. § 3142(f).

The district court failed to hold a pretrial detention hearing

in a timely manner.5 While the failure to provide Meyers with the

hearing demanded by the statute is unfortunate, it is not a

sufficient reason to require mandatory release of the defendant.

United States v. Montalvo-Murillo, 495 U.S. 711 (1990). By the

same token, it is not a sufficient justification to reverse Meyers’

otherwise valid convictions. See also United States v. Rivera, 837

F.2d 906, 925 (10th Cir. 1988), vacated, 900 F.2d 1462 (10th Cir.

1990) (failure of the district court to comply with statutory

requirements is not sufficient reason to dismiss all charges).

The district court erred in failing to timely address Meyers’

pretrial release motions. However, because Meyers was convicted on

both counts, the error was harmless and the issue is now moot. See

5
The district court was untimely because (1) it did not
hold a detention hearing within five days of Meyers’ initial
appearance in its court, see 18 U.S.C. § 3142(f), and (2) if
Meyers’ motions for a pretrial release are construed as “appeals”
of the Colorado magistrate judge’s denial of bond, the motions
were not determined promptly as required by 18 U.S.C. § 3145(b).

- 26 -
Montalvo-Murillo, 495 U.S. at 722 (harmless error analysis applies

to § 3142 review).

B. Release on Appeal

Since the detention hearing occurred after Meyers was

convicted and the district court based its ruling, in part, on the

fact that Meyers had already been convicted, we will treat Meyers’

December 12, 1995, motion as an appeal to this court of the

district court’s denial of post-conviction release under 18 U.S.C.

§ 3145(c).6 Our “review of detention or release orders is plenary

as to mixed questions of law and fact and independent, with due

deference to the district court’s purely factual findings.” United

States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991).

In United States v. Affleck, 765 F.2d 944, 952-53 (10th Cir.

1985), we held that in order to grant bail pending appeal, a court

must find that (1) the defendant has met his burden of proving by

clear and convincing evidence that he is not likely to flee or pose

a danger to the safety of any other person or to the community if

released under § 3143(b)(1), and (2) he has established by a

preponderance of the evidence that the appeal is not for purpose of

delay, the appeal raises a substantial question of law or fact, and

6
Although the filing of a notice of appeal usually
divest the district court of further jurisdiction, the initial
determination of whether a convicted defendant is to be released
pending appeal is to be made by the district court. United
States v. Affleck, 765 F.2d 944, 954 (10th Cir. 1985). See also
Fed. R. App. P. 9 Advisory Committee Notes, Subdivision (b).

- 27 -
if that substantial question is determined favorably to defendant

on appeal, the decision is likely to result in reversal or an order

for a new trial of all counts on which imprisonment has been

imposed.

Here, the district court found that Meyers had a history of

failing to appear and that he posed a significant flight risk. We

conclude that the district court’s findings are amply supported by

the record and that Meyers has failed to establish that he has

satisfied the criteria required for release stated in § 3143(b).

Therefore, the district court’s denial of bail pending appeal is

affirmed.

AFFIRMED.

- 28 -
No. 95-8079 -- UNITED STATES v. MEYERS

BRORBY, Circuit Judge, respectfully dissenting.

Because I do not believe it is the proper role of the

court to establish a factor-driven test to be used to define

what a religion is, I respectfully dissent from my colleagues.

The ability to define religion is the power to deny freedom of

religion. The ethereal and personal nature of religion has

posed problems for most courts that have attempted to define

it. See Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir. 1985)

("The determination of whether a belief is religious or not is

an extremely delicate task which must be approached with

caution."); Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3rd

Cir. 1981) ("[j]udges are ill-equipped to examine the breadth

and content of an avowed religion"), cert. denied, 456 U.S.

908 (1982); United States v. Kauten, 133 F.2d 703, 708 (2d

Cir. 1943) (recognizing that the definition of religion "is

found in the history of the human race and is incapable of

compression into a few words"); see also Brown v. Dade

Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977) (judges

filed two concurrences and two dissenting opinions in a case

attempting to define religion in order to determine whether a

religious school's policy of racial discrimination was
religious or social or political in nature), cert. denied, 434

U.S. 1063 (1978).

In Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972), the

Supreme Court held that religious beliefs are distinct from

philosophical and personal choices but failed to provide a

test or a definition against which lower courts could hold the

religious claims of petitioners to determine whether the

claims warrant constitutional protection. Many courts have

felt compelled by the distinction made in Yoder to establish

a definition of religion. See United States v. Ward, 989 F.2d

1015, 1017 (9th Cir. 1992); Quaring v. Peterson, 728 F.2d

1121, 1123 (8th Cir. 1984), aff'd, 472 U.S. 478 (1985);

Africa, 662 F.2d at 1031. We, however, had declined to do so

until now. In Werner v. McCotter, 49 F.3d 1476, 1479 n.1

(10th Cir.), cert. denied, 115 S. Ct. 2625 (1995), we

recognized the distinction in Yoder and then found "[a]

plaintiff, however, need not hew to any particular religious

orthodoxy; it is enough for the plaintiff to demonstrate that

a government has interfered with the exercise or expression of

her or his own deeply held faith." Id. at 1480. I believe an

approach that prevents the courts from evaluating the

- 2 -
orthodoxy and expression of the individual is the approach

most in keeping with the mandates of the Constitution and the

Supreme Court. For, it seems to me that the free exercise of

religion which we are all guaranteed by the First Amendment

necessarily includes the rights of individuals to define their

own religion. Accordingly, it is an unproductive and

unnecessarily invasive exercise for the courts to attempt to

evaluate an individual's religious claims and practices

against any set standard of preconceived notions of what types

of religious beliefs are valid of being recognized by the

courts. In fact, in the conscientious objector context, the

Supreme Court has held

"Men may believe what they cannot prove. They may
not be put to the proof of their religious doctrines
or beliefs. Religious experiences which are as real
as life to some may be incomprehensible to others."
Local boards and courts in this sense are not free
to reject beliefs because they consider them
"incomprehensible."

United States v. Seeger, 380 U.S. 163, 184-85 (1965) (quoting

United States v. Ballard, 322 U.S. 78, 86 (1944)). By

attempting to evaluate another's religion with a factor-driven

test we have essentially gutted the Free Exercise Clause of

its meaning and are ignoring the Supreme Court's cautionary

words that a person's views can be "incomprehensible" to the

- 3 -
court and still be religious in his or her "own scheme of

things." Id.

In an early opinion addressing the Constitutional meaning

of "religion," the Supreme Court first recognized that the

word religion is not defined in the Constitution and then

turned to Thomas Jefferson's views that

"religion is a matter which lies solely between man
and his God; that he owes account to none other for
his faith or his worship; that the legislative
powers of the government reach actions only, and not
opinions, -- I contemplate with sovereign reverence
that act of the whole American people which declared
that their legislature should 'make no law
respecting an establishment of religion or
prohibiting the free exercise thereof,' thus
building a wall of separation between church and
State. Adhering to this expression of the supreme
will of the nation in behalf of the rights of
conscience, I shall see with sincere satisfaction
the progress of those sentiments which tend to
restore man to all his natural rights, convinced he
has no natural right in opposition to his social
duties."

Reynolds v. United States, 98 U.S. 145, 164 (1878). The Court

then held that Jefferson's words "may be accepted almost as an

authoritative declaration of the scope and effect of the

amendment thus secured. Congress was deprived of all

legislative power over mere opinion, but was left free to

reach actions which were in violation of social duties or

- 4 -
subversive of good order." Id.; see also, Ballard, 322 U.S.

at 87 (noting the intent of the "fathers of the Constitution"

to provide for the "the widest possible toleration of

conflicting views" and protection of religious beliefs, even

those deemed incredible or preposterous by most people); Davis

v. Beason, 133 U.S. 333, 342 (1890) ("[w]ith man's relations

to his Maker and the obligations he may think they impose, and

the manner in which an expression shall be made by him of his

belief on those subjects, no interference can be permitted").

The Court expressed the same sentiment in Cantwell v.

Connecticut, 310 U.S. 296, 303-04 (1940), when it held

The constitutional inhibition of legislation on the
subject of religion has a double aspect. On the one
hand, it forestalls compulsion by law of the
acceptance of any creed or the practice of any form
of worship. Freedom of conscience and freedom to
adhere to such religious organization or form of
worship as the individual may choose cannot be
restricted by law. On the other hand, it safeguards
the free exercise of the chosen form of religion.
Thus the Amendment embraces two concepts, -- freedom
to believe and freedom to act. The first is
absolute but, in the nature of things, the second
cannot be.

The absoluteness of the freedom to believe and the freedom to

exercise a chosen form of religion is significantly diluted by

a court sponsored inquiry into what the individual believes

and how he or she expresses those beliefs. Although the

- 5 -
factors provided by the majority opinion arguably are content

neutral, they still require an individual to provide evidence

concerning what he or she believes and how he or she expresses

those beliefs so that the courts may then judge whether the

beliefs and practices are acceptable enough to be labeled a

"religion" under our definition. Such scrutiny clearly usurps

the individual's right to believe and to express those beliefs

however he or she chooses.

The Supreme Court has also cautioned that a determination

of what is a religious belief or practice is "not to turn upon

a judicial perception of the particular belief or practice in

question; religious beliefs need not be acceptable, logical,

consistent or comprehensible to others in order to merit First

Amendment protection." Thomas v. Review Bd. of Indiana

Employment Sec. Div., 450 U.S. 707, 714 (1981). Furthermore,

"it is no business of courts to say that what is a religious

practice or activity for one group is not religion under the

protection of the First Amendment." Fowler v. Rhode Island,

345 U.S. 67, 70 (1953); see also Hernandez v. Commissioner,

490 U.S. 680, 693 (1989) ("under the First Amendment, the IRS

can reject otherwise valid claims of religious benefit only on

- 6 -
the ground that a taxpayers' alleged beliefs are not sincerely

held, but not on the grounds that such beliefs are inherently

irreligious"). By applying a broad factor- driven test as

advocated by the majority opinion, the subjective perceptions

of the court are necessarily invoked in evaluating whether

what the individual claims to be religious is indeed

religious. It also requires the court to judge the practices

of the individual to see if they are indeed "religious." This

test clearly violates the spirit, if not the intent, of the

First Amendment.

The Second Circuit relied on the works of American

philosopher William James to define religion as:

"the feelings, acts, and experiences of individual
men in their solitude, so far as they apprehend
themselves to stand in relation to whatever they may
consider the divine." W. James, The Varieties of
Religious Experience 31 (1910). In referring to an
individual's relation to what he considers the
divine, Professor James used the word 'divine' in
its broadest sense as denoting any object that is
godlike, whether it is or is not a specific deity.
Id. at 34. Therefore, under the Religion Clauses,
everyone is entitled to entertain such view
respecting his relations to what he considers the
divine and the duties such relationship imposes as
may be approved by that person's conscience, and to
worship in any way such person thinks fit so long as
this is not injurious to the equal rights of others.

United States v. Moon, 718 F.2d 1210, 1227 (2d Cir. 1983),

- 7 -
cert. denied, 466 U.S. 971 (1984). I believe this definition

comes the closest to capturing the inherently elusive,

spiritual and personal nature of religion. I also believe

that under such a definition it is inappropriate, if not

impossible, to evaluate or analyze the religious beliefs of an

individual under a factor-driven approach. The

appropriateness of the above definition lies in its openness,

which also makes it unworkable as a standard for those seeking

concrete guidance in this area.

It seems to me the better practice is not to engage in

any type of an attempt to define religion and instead to

assume, without deciding, the validity of an individual's

sincerely held religious beliefs for purposes of

constitutional protection. See Smith v. Board of Sch. Comm'rs

of Mobile County, 827 F.2d 684, 689 (11th Cir. 1987) (assuming

secular humanism is a religion for purposes of the

Establishment Clause); United States v. Middleton, 690 F.2d

820, 824 (11th Cir. 1982) (assuming Ethiopian Zion Coptic

Church is a valid religion), cert. denied, 460 U.S. 1051

(1983); see also Jones v. Bradley, 590 F.2d 294, 296-97 (9th

Cir. 1979) (assuming members of the Universal Life Church are

- 8 -
entitled to First Amendment protection). Under this approach

if an individual makes a claim that a government law

substantially burdens his or her sincere religious beliefs I

would assume the validity of the religion without analyzing

the tenets or practices of the religion to see if they fit

some preconceived vision of what a religion is. This approach

may seem radical; however, it is the only way we can assure an

individual the absolute freedom to worship what he or she

chooses in the way in which he or she chooses. It is

important to note that such a practice would not send us down

a "slippery slope" or create a mass shield which any criminal

could use to thwart prosecution for crimes done in the name of

religion. It has never been the law in this country that

religious beliefs prevent the government from regulating

criminal or other harmful actions of individuals. Cantwell,

310 U.S. at 303. Under the Religious Freedom and Restoration

Act, after raising the defense of religion, the individual

must show that his or her religious beliefs are sincerely held

and were substantially burdened. If this showing is made,

then the government may still prevail if it shows that such

burden is necessary to further a compelling government

interest and that the law is the least restrictive means of

- 9 -
furthering that interest. 42 U.S.C. § 2000bb-1. This law

enforces the absolute freedom of the individual to believe and

worship whatever he or she chooses, but clearly prevents him

or her from freely acting on these beliefs in ways that are

harmful to others.

In this case, I would assume the validity of Mr. Meyers'

religious beliefs and affirm the district court's findings

that these beliefs are sincerely held and substantially

burdened by the laws in question. Although I am confident

that the government will have no problem meeting its burden of

proof, Olsen v. DEA, 878 F.2d 1458, 1462-63 (D.C. Cir. 1989)

(government has a compelling interest in regulating the use of

marijuana and is not required to accommodate sacremental use),

cert. denied, 495 U.S. 906 (1990), it has not yet been given

an opportunity to do so. Therefore, in accordance with the

requirements of 42 U.S.C. § 2000bb-1, I would reverse the

district court's findings that Mr. Meyers' sincerely held

beliefs are not religious and I would remand to allow the

government an opportunity to meet its burden of showing that

the laws involved serve a compelling government interest and

are the least restrictive means of meeting that interest. See

- 10 -
United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996).

- 11 -