FILED
United States Court of Appeals
Tenth Circuit
April 15, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 07-2137, 07-2140
DANUEL DEAN QUAINTANCE, and 07-2143
MARY HELEN QUAINTANCE, and
JOSEPH ALLEN BUTTS,
Defendants - Appellants,
and
TIMOTHY JASON KRIPNER,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-06-538-JH)
John F. Robbenhaar, Albuquerque, New Mexico, for Defendants-Appellants.
Terri J. Abernathy, Assistant United States Attorney (Larry Gomez, United States
Attorney, with her on the brief), Las Cruces New Mexico, for Plaintiff-Appellee.
Before KELLY, ANDERSON, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Defendants Joseph Allen Butts, Danuel Dean Quaintance, and Mary Helen
Quaintance were indicted for conspiracy to possess and possession of marijuana
with intent to distribute. 1 The defendants moved to dismiss the indictment,
arguing the prosecution constituted a substantial burden on the exercise of their
religion in violation of the Religious Freedom Restoration Act (“RFRA”). 42
U.S.C. §§ 2000bb–2000bb-4. The district court denied the motion and granted
the government’s motion in limine barring the defendants from raising a RFRA
defense at trial. The defendants filed these interlocutory appeals. 2 We hold the
defendants have not asserted a valid right not to be tried under the collateral order
exception to the final judgment rule. See 28 U.S.C. § 1291. We therefore
DISMISS the appeals.
I. Background
The defendants were charged in a two-count indictment with conspiring to
possess and actual possession of marijuana with intent to distribute in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. In their motion to dismiss the
indictment, the defendants argued they are members of the Church of Cognizance
and sincerely believe cannabis is a deity and sacrament essential to the practice of
1
Co-defendant Timothy Jason Kripner is not a party to this appeal.
2
The defendants each filed a notice of appeal. This court consolidated
those appeals for briefing purposes only. The defendants participated in joint
briefing and assert the same arguments in their appeals.
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their religion. The defendants further argued that this enforcement of the
Controlled Substances Act is contrary to RFRA because it substantially burdens
their free exercise of religion, without furthering a compelling government
interest.
The district court, after conducting a three-day evidentiary hearing on the
motion, determined the defendants had not established the existence of a sincerely
held religious belief. It therefore denied the motion to dismiss the indictment. It
also denied the defendants’ motion to reconsider its decision. The parties filed
cross motions in limine, the defendants moving for an order allowing them to
present a RFRA defense at trial and the government arguing such evidence should
not be presented. The district court denied the defendants’ motion and granted
the government’s motion. The defendants each filed a notice of appeal from the
district court’s orders denying the motion to the dismiss, denying the motion to
reconsider, and granting the government’s motion in limine. The government
filed a motion to dismiss the appeals for lack of jurisdiction.
II. Discussion
This court has jurisdiction to hear appeals from “final decisions of the
district court.” 28 U.S.C. § 1291. The government argues the appeals must be
dismissed for lack of jurisdiction because there is no final judgment of the district
court and the orders appealed do not meet the requirements of the collateral order
doctrine. The defendants acknowledge the interlocutory nature of their appeals,
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but contend their claim falls under the collateral order exception to the final
judgment rule.
The collateral order doctrine encompasses only a small class of cases “that
‘finally determine claims of right separable from, and collateral to, rights asserted
in the action, too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the whole case is
adjudicated.’” Mesa Oil, Inc. v. United States, 467 F.3d 1252, 1254 (10th Cir.
2006) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
Three requirements must be met before this court can entertain an appeal under
this exception: “[1] the order must conclusively determine the disputed question,
[2] resolve an important issue completely separate from the merits of the action,
and [3] be effectively unreviewable on appeal from a final judgment.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978). Generally, an order is effectively
unreviewable under the third prong of this test “only where the order at issue
involves an asserted right the legal and practical value of which would be
destroyed if it were not vindicated before trial.” Lauro Lines S.R.L. v. Chasser,
490 U.S. 495, 498-99 (1989) (quotations omitted). Because we conclude the
orders appealed here cannot satisfy this third requirement, we will not consider
the first two prongs of the test. See Mesa Oil, 467 F.3d at 1255.
A right not to be tried “rests upon an explicit statutory or constitutional
guarantee that trial will not occur.” Midland Asphalt Corp. v. United States, 489
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U.S. 794, 801 (1989). “Because of the compelling interest in prompt trials, the
[Supreme] Court has interpreted the requirements of the collateral-order exception
to the final judgment rule with the utmost strictness in criminal cases.” Flanagan
v. United States, 465 U.S. 259, 265 (1984). This court has held there is no right
not to be tried for ordinary speech protected by the First Amendment because
there is no such statutory or constitutional guarantee. United States v. Ambort,
193 F.3d 1169, 1171 (10th Cir. 1999). In so holding we relied upon “‘the crucial
distinction between a right not to be tried and a right whose remedy requires the
dismissal of charges.’” Id. (quoting United States v. Hollywood Motor Car Co.,
458 U.S. 263, 269 (1982)). We concluded “First Amendment defenses like those
[at issue in Ambort] are adequately safeguarded by review after any adverse final
judgment.” Id. at 1172.
The defendants claim the orders at issue here are effectively unreviewable
because RFRA and the Religious Land Use and Institutionalized Persons Act of
2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc-5, codify a First Amendment
right not be tried. They argue a First Amendment free exercise right is lost if not
vindicated before trial because the act of going to trial may chill the exercise of
the right and, if the defendants are convicted, that loss of liberty can never be
remediated. This court must “view claims of a ‘right not to be tried’ with
skepticism, if not a jaundiced eye.” Digital Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 873 (1994).
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Like the defendants in Ambort, the defendants here have asserted only a
First Amendment defense rather than a right not to be tried. They have pointed to
no explicit guarantee in the Constitution or in statute indicating such a right
attaches to their free exercise claims. To the contrary, both RFRA and RLUIPA
explicitly state they may be used as a defense in a judicial proceeding. 42 U.S.C.
§ 2000bb-1 (“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 . . . .”); 42 U.S.C. § 2000cc-2(a) (“A person may assert a violation of
this chapter as a claim or defense in a judicial proceeding . . . .”). Unlike the
scenario in United States v. P.H.E., Inc., where this court considered the chilling
effect a prosecution had on a First Amendment right, the defendants here have not
shown “substantial evidence of an extensive government campaign . . . designed
to use the burden of repeated criminal prosecutions to chill the exercise of First
Amendment rights.” 965 F.2d 848, 855 (10th Cir. 1992) (noting the case
presented “an unusual, perhaps unique confluence of factors”). Further, were we
to conclude that the possibility of wrongful imprisonment rendered an order
immediately reviewable, the collateral order exception would certainly swallow
the final judgment rule.
The rights asserted here can be vindicated by appellate review after the
district court has entered a final judgment. We therefore hold the district court’s
orders are not reviewable under the collateral order doctrine.
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III. Conclusion
For the reasons stated above, this court grants the government’s motion and
DISMISSES the appeals for lack of jurisdiction.
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